Land Court hands down first Native Title Protection Conditions Recommendations Dispute Judgment

Implications for explorers with exploration permits 7 min read

On 21 October 2022, the Land Court of Queensland delivered judgment in the matter of Pacgold Ltd v Ross and Ors as the Registered Native Title Claimant in Cape York United Number 1 Claim [2022] QLC 15.*

The decision was the first of its kind in relation to the Native Title Protection Conditions (NTPCs), which are conditions that apply to many exploration permits in Queensland. The decision will have implications for explorers with exploration permits granted subject to the NTPCs, and provides guidance on what are reasonable recommendations a native title party can make regarding exploration activities undertaken pursuant to the conditions.

Background

For context, the NTPCs apply to many exploration permits granted in Queensland. They are almost always conditions of any exploration permits granted by the state pursuant to the 'expedited procedure' under the Native Title Act. Many permits are granted pursuant to the expedited procedure because they are considered to have a low impact on native title. The use of the NTPCs has been commonly taking place in Queensland for about 20 years. Despite that rather long history, this case is the first time a dispute arising under those conditions between an explorer and a native title party has been decided by the Land Court.

Pacgold Limited (the applicant in the proceeding) is the holder of two mineral exploration permits, EPM15359 and EPM26266, each of which was granted subject to the NTPCs. The respondent in the case was the registered native title claimant for the Cape York United Number 1 Claim, which has a registered native title claim over an area that wholly overlaps EPM15359 and EPM26266. Pacgold issued an exploration activity notice (EAN) under the NTPCs to the respondent, as the 'Native Title Party' for the area the subject of that notice, describing an exploration program it wished to undertake.

The respondent native title party undertook a cultural heritage survey of the relevant area and provided Pacgold with an 'Inspection Report' that set out various recommendations with respect to the conduct of Pacgold's exploration program notified in the EAN. The parties were unable to reach agreement with respect to two of these recommendations. Pacgold applied to the Land Court for a determination of the 'Recommendations Dispute' as to the reasonableness of these remaining two recommendations.

In determining the application, the Land Court was required to consider:

1. whether the Land Court has jurisdiction to determine a 'Recommendations Dispute' under the NTPCs;
2. whether the respondent is the 'Native Title Party' with respect to EPM15359 for the purposes of the NTPCs; and
3. whether each of the recommendations the subject of the dispute was reasonable.

Land Court's jurisdiction

The respondent challenged the Land Court's jurisdiction to determine a recommendations dispute under the NTPCs on the following bases:

1. that section 363 of the Mineral Resources Act 1989 (Qld) (MRA) only confers the Land Court jurisdiction to grant civil relief, and the relief sought by Pacgold was administrative in nature;
2. clauses 6.6 and 6.7 of the NTPCs are invalid, as they are not authorised by sections 141(1)(j) and 141AA of the MRA, on the basis that they purport to delegate a decision concerning the conditions of an exploration permit to a person other than the decision maker; and
3. in respect of EPM15359, the respondent was not the 'Native Title Party' for the purposes of the NTPCs.

Relevantly, section 363(2)(ea) provides that:

…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;…

The Land Court decided that section 363(2)(ea) conferred specific jurisdiction on the court to determine whether or not the disputed recommendations are reasonable, noting that the language of the provision is clear and the subject matter of the application was exactly what is contemplated by the provision.

Further, the court held that such a determination is not an impermissible deferral of an essential matter or delegation of a decision.

Therefore, the court decided it did have jurisdiction to hear and determine Recommendations Disputes referred to it pursuant to the NTPCs.

Relevant Native Title Party for NTPCs

The notification day for EPM15359 was 23 August 2006 (prior to the grant of that EPM in 2007). At the date four months after that date, the tenement was subject to two registered native title claims, being the Olkola People claim and the claim by the Olkola and Thaypan Peoples. Both those claims were subsequently discontinued in 2013 and 2014. The Cape York United Number 1 Claim was registered on 6 February 2015, in relative terms a short time after the discontinuance of the old claims. The Cape York United Number 1 claim was over a much larger area than the old Olkola claims, and as its name suggests, the claim in effect combines the area that was formerly the subject of several separate claims. One of the applicants making up the registered native title claimant for the Cape York United Number 1 claim was also an applicant for the former Olkola claims.

The respondent argued that the Cape York United Number 1 claim registered native title claimant, with whom Pacgold had engaged throughout the NTPC process for both EPMs, was in fact not the Native Title Party for EPM15359 under the NTPCs, as they were not the registered native title claimant in 2006 for the relevant area. The respondent argued that the registered native title claimant for the older, discontinued Olkola People claim was the Native Title Party.¹ Therefore, it was argued by the respondent that there was not a 'Recommendations Dispute' before the Land Court for it to decide in relation to EPM 15359.

Under the NTPCs, an EAN must be given to the 'Notified Native Title Parties'. The Notified Native Title Parties are each Native Title Party for each Native Title Claim within a Notification Area.

The NTPCs define Native Title Claim as meaning:

1. native title determination application [registered claims at 4 months after the notification day (see s.29(4) of the NTA) in relation to the tenement];
2. native title determination [native title determinations at 4 months after the notification day (see s.29(4) of the NTA) in relation to the tenement];

In respect of paragraph (a) of that definition, the court held that '[T]he choice of language in the bracketed definitional text [registered claims at 4 months after the notification date (sic)] is deliberate and not open to the temporal interpretation advanced by Pacgold'.²

Accordingly, the court found that the current registered native title claimant for the area including EPM15359, being the Cape York United Number 1 claim registered native title claimant, is not the Native Title Party for the purpose of the NTPCs. Consequently, the Land Court did not have jurisdiction to determine the Recommendations Dispute insofar as it related to EPM15359.

The court left open the question of who the Native Title Party for EPM15359 was in the circumstances, as for the purpose of the case the court stated it only needed to conclude that the Cape York United Number 1 claim registered native title claimant was not the Native Title Party.

Merits of the Recommendations Dispute

The Land Court acknowledged that the NTPCs do not offer the court a discrete set of criteria to apply in deciding a Recommendations Dispute. It adopted a test that '[i]n the absence of specified criteria… is whether or not the recommendation is reasonable taking into account the factual and legislative circumstances'³, rather than whether the recommendation is 'arbitrary or lacking in intelligible justification' (as had been argued for by the Native Title Party).

There was some dispute about the scope of the Recommendations Dispute, and indeed the court accepted the argument of Pacgold that one of the two issues was not in fact properly within the scope of the dispute it needed to decide. However, leaving that to one side, the court considered the reasonableness of both recommendations in dispute and found that the following two recommendations made by the Native Title Party in the Inspection Report (as amended in subsequent correspondence) were unreasonable:

1. A recommendation that a cultural heritage management agreement be negotiated and agreed before Pacgold commenced the exploration activities set out in the EAN (Recommendation 1).
2. A recommendation that Pacgold seek and/or obtain an approval granted under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) before proceeding with the exploration activities set out in the EAN (Recommendation 12).

In respect of Recommendation 1, the court explained it was unreasonable to require the development of a cultural heritage management agreement, or cultural heritage management plan, against a legislative backdrop in which exploration permits are granted subject to NTPCs in circumstances that justify an expedited procedure rather than a full 'right to negotiate' process, and where there is no clarity provided around the process to reach agreement and remove any obstacles arising in such negotiations.

In respect of Recommendation 12, the court held it to be unreasonable to require Pacgold to either apply for, or obtain, an EPBC approval for the activities in circumstances where such applications are detailed and complex and 'Pacgold, like the holders of all resource authorities, are subject to a range of legislative obligations and are afforded the presumption of regularity'.⁴

*Allens acted for Pacgold in this proceeding.