Bidjara People Claim Group v PAPL (Upstream) Pty Ltd [2017] QLC 44 (2017) 38 QLCR 133

LAND COURT OF QUEENSLAND CITATION: Bidjara People Claim Group & Ors v PAPL (Upstream) Pty Ltd & Ors [2017] QLC 44 PARTIES: Bidjara People Claim Group (applicant) Bidjara People #7 Claim Group (applicant) Bidjara Traditional Owners Limited ABN 55 118 395 725 (applicant) v PAPL(Upsteam) Pty Ltd ABRN 102 958 734 (respondent) Santos TOG Corp ABRN 102 958 734 (respondent) Santos TOGA Pty Ltd ABRN 46 077 536 871 (respondent) Total E&P AUSTRALIA ABRN 112 603 880 (respondent) Santos TPY CSG Corp ABRN 108 566 052 (respondent) Santos QNT Pty Ltd ABN 33 083 077 196 (respondent) Santos TPY Corp ABRN 102 958 707 (respondent) Santos Queensland Corp ABN 75 111 733 969 (respondent) -- 1 of 13 -- 2 FILE NO/s: LCA002-17 DIVISION: Cultural Heritage and Indigenous Land Use Agreement Division PROCEEDING: Application to enforce a negotiated agreement DELIVERED ON: 24 August 2017 DELIVERED AT: Brisbane HEARD ON: 18 July 2017 and 1 August 2017 HEARD AT: Brisbane PRESIDENT: FY Kingham ORDER/S: 1. The application is refused. CATCHWORDS: ABORIGINES AND TORRES STRAIT ISLANDERS – NATIVE TITLE – where the parties entered into a negotiated agreement under the Native Title Act 1993 – where the applicants were native title claim groups when the negotiated agreement was entered into – where their claims for native title were dismissed – where it was found the applicants are no longer native title claim groups under the Native Title Act 1993 CONTRACT – GENERAL PRINCIPLES - DISCHARGE BY FRUSTRATION – where the applicants were native title claim groups when the negotiated agreement was entered into – where they gave consents and undertakings as registered native title claimants – where they were entitled to compensation under the agreement for those consents and undertakings – where their claims for native title were later dismissed – where it was found that this frustrated the fundamental purpose of the agreement CONTRACT – GENERAL PRINCIPLES – INTERPRETATION – where the applicants were required to nominate an incorporated body to accept compensation payments under a negotiated agreement – where that body must be established for the sole benefit of the native title claim groups – where the native title claims made by those groups were dismissed – where it was found that the respondents’ liability to make payments was suspended under the agreement -- 2 of 13 -- 3 Aboriginal Cultural Heritage Act 2003 s 34(1)(b)(i) Land Court Act 2000 s 32G Native Title Act 1993 (Cth) s 28(1)(f), s 29, s 30, s 31, s 31(1)(b), s 61(1), s 253 Land Court Rules 2000 r 4 Uniform Civil Procedure Rules 1999 r 75 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 applied Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638 followed Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 applied McGlade v Native Title Registrar [2017] FCAFC 10 followed Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777 considered APPEARANCES: L Stephens of Counsel (instructed by Frank Jongkind & Co) for the applicants M McKechnie of Counsel (instructed by Santos Ltd) for the respondents Background [1] The applicants want to enforce a negotiated agreement1 made with the respondent companies following a right to negotiate process under the Native Title Act 1993 (Cth) (NTA).2 When the agreement was entered into, two of the applicants (the Bidjara People Claim Group and the Bidjara People #7 Claim Group) were registered native title claimants3 (the Bidjara Claimants) under the NTA for land in and around Carnarvon in Central Queensland.4 The respondent companies (Santos) are parties to a joint venture which operates a petroleum project on land including an area claimed by the Bidjara Claimants. [2] The agreement, which commenced on 18 February 2014, was ancillary to a deed entered into between the Bidjara Claimants, Santos and the State of Queensland.5 Under the deed, the Bidjara Claimants consented to land being added to an 1 Land Court Act 2000 s 32G, the Court has jurisdiction to enforce, determine a matter arising under, and make a declaration about the interpretation of a negotiated agreement. 2 Native Title Act 1993 (Cth) Part 2, Div 3, Sub P. 3 Native Title Act 1993 (Cth) s 253. 4 Federal Court proceedings number QUD216/2008 & QUD 644/2012. 5 Made pursuant to Native Title Act 1993 (Cth) s 31. -- 3 of 13 -- 4 Authority to Prospect held by Santos and to the grant of three Petroleum Leases to Santos.6 The Bidjara Claimants also acknowledged in the deed that the agreement dealt with the effect of those acts on their Native Title rights and interests.7 If the Native Title claims were determined in the Bidjara Claimants’ favour, the effect of the deed and agreement would be to qualify those acts as valid future acts under the NTA.8 [3] Under the agreement, Santos agreed to pay compensation to a company nominated by the Bidjara Claimants to receive those payments.9 The third of the applicants, Bidjara Traditional Owners Ltd, is the company nominated for that purpose. The payment schedule in the agreement provided for some up-front payments in February and July 2014 and annual payments of $100,000 over five years starting in 2015.10 In all, Santos has paid $1,250,000, comprised of the up-front payments and the first of the five annual payments. [4] The applicants claim an immediate payment of $100,000 (the 2016 payment) and interest, and a declaration they are entitled to payment of the balance of $300,000 (the payments for 2017-2019 inclusive).11 Santos has made no payments since July 2015, and denies it is liable to do so. [5] Since the last payment was made, the Bidjara Claimants’ Native Title claims were dismissed.12 Their appeal was also dismissed, and the Bidjara Claimants’ appear to have exhausted their rights to appeal or review that decision. There is no order or direction staying its effect. The parties disagree about the impact of the decision of the Federal Court. [6] The applicants say the decision of the Federal Court is not relevant to the agreement and does not relieve Santos of its liability to continue to make compensation payments. Santos submits the Bidjara Claimants have no legal capacity to bring the application and their claim must be dismissed on that ground alone. Santos also 6 Authority to Prospect 653 and Petroleum Leases 420, 421, and 440 granted under the Petroleum and Gas (Production and Safety) Act 2004. 7 Agreed statement of facts and issues on behalf of the parties filed 26 May 2017 Annexure B, at cl 8. 8 Native Title Act 1993 (Cth) s 28(1)(f). 9 Ancillary agreement 18 February 2014, at cl 6.1-6.4. 10 Ancillary agreement 18 February 2014, at sch 1. 11 Applicants’ submissions filed 9 June 2017, at paras 3 and 7. 12 Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777 at [60]. -- 4 of 13 -- 5 submits the agreement is frustrated or, properly construed, Santos’ liability to make further annual payments is suspended. [7] The issues can be conveniently dealt with by addressing these questions:13 (a) Do the Bidjara Claimants have legal capacity to bring these proceedings? (b) Has the agreement been frustrated? and (c) Is Santos’ liability under the agreement suspended? Do the Bidjara Claimants have legal capacity to bring these proceedings? [8] Santos submits the Bidjara Claimants lack legal status to bring this application. The application was not brought by the individuals in their own right; it was brought by the Bidjara Claim Groups. Santos submitted that, if there is no longer an application for a determination of Native Title, there is no longer a claim group. [9] Their role in the agreement is as registered Native Title claimants, and as representatives of claim groups seeking rights which are ordinarily communal in nature.14 As a result of Jagot J’s decision, they are no longer either registered native title claimants or native title parties15 under the NTA. Accordingly Santos says they no longer exist as a legal entity. [10] The applicants submit that they have standing to bring the application as parties to a contract. The application relates only to the contractual rights of the parties.16 The agreement was made between each of the parties on their own behalf, and on behalf of the Native Title group. As such, each individual has a contract with Santos, and the status of their Native Title claims is not relevant.17 [11] I reject the proposition that the status of the Native Title claims is not relevant to this application. For reasons given later in this decision, the Native Title issues and the interpretation and enforceability of this agreement are inextricably linked. 13 Some matters originally in issue are no longer maintained. The applicants no longer seek an injunction and do not want the application referred for ADR. Santos maintains its argument that the Bidjara Claimants cannot enforce the agreement, because they are no longer native title parties, but accepts Bidjara Traditional Owners Ltd has standing to bring the application and the Court has jurisdiction under the Land Court Act 2000 s 32G. 14 Respondents’ submissions filed 23 June 2017, at para 17. 15 Native Title Act 1993 (Cth) ss 29 and 30. 16 Applicants’ submissions filed 9 June 2017, at para 1. 17 Applicants’ submissions filed 9 June 2017, at para 2. -- 5 of 13 -- 6 [12] Nevertheless, accepting the groups have a particular status under the NTA does not necessarily determine the question of standing to bring this application. Santos’ arguments about this necessarily raises questions of interpretation of the agreement itself. The members of the group have a clear interest in that interpretation as parties to the agreement and persons for whose benefit, at least in part, the compensation is to be paid. Their rights will be directly affected by the decision on the application. [13] Section 32G(1) of the Land Court Act 2000 expressly states a party to a negotiated agreement may apply for orders of the sort the applicants’ request. The proper procedure would have been for one or more individuals to be named as the applicants as representatives of all the members of each group.18 However, as I understood the submissions, Santos did not take this technical point, because there is no issue with the legal status of the third applicant. It accepted the jurisdiction of the Court to deal with the application had been properly invoked. Has the agreement been frustrated? [14] Santos submitted the agreement has been frustrated. The parties entered into the agreement on common assumptions about the following matters which, it argued, are essential to the operation and performance of the agreement: (a) The continued status of the Bidjara Claimants as Registered Native Title Claimants and authorised representatives of the Bidjara Claim Groups; and (b) The ongoing existence of the Bidjara Claim Groups themselves. [15] I take that second point to mean the ongoing existence of the Bidjara Claim Groups as Native Title Claim Groups under the NTA. That is determined by the provisions of the NTA, and is linked to the status of the Native Title claims and the groups’ relationship to those claims. [16] Santos says Jagot J’s decision determines whether or not there is any group which holds the common or group rights or interests comprising the particular Native Title claimed in the Bidjara claims.19 The applicants say it is clear from her Honour’s reasons that she believed Bidjara people were the prior owners of that country, but 18 Land Court Rules 2000 r 4; Uniform Civil Procedure Rules 1999 r 75. 19 Respondents’ submissions filed 23 June 2017, at para 31. -- 6 of 13 -- 7 the claims failed because they had lost connection and continuity with the land.20 They lost their appeal because the Bidjara had no money to prosecute it, and the appeal period lapsed. Therefore, the appeal was not determined on its merits.21 The appeal may not have been, but the decision at first instance was. The applicants did not assert any further right of appeal or review and, at least for the purposes of the Native Title claims, her Honour’s decision is determinative. [17] That does not mean that the Bidjara Claimants have lost cultural heritage rights in relation to the land. The Bidjara Claimants claim to be the “Last Man Standing”. That principle applies under the Aboriginal Cultural Heritage Act 2003. It provides that a party whose Native Title claim has failed or been withdrawn will remain the benefactor of the cultural heritage laws until another claim is registered.22 [18] Santos has a Cultural Heritage Management Plan which relates to the tenures and a number of members of the Bidjara Claim Groups are signatories to the plan. It is possible for a different application to be brought if it is alleged that Santos has or may breach cultural heritage rights. However, there is no issue before the Court relating to activities under the CHMP or Santos’ duties under that Act. [19] The applicants argued the agreement does not require there to be a Registered Native Title Claimant in order for the contractual obligations to be enforced.23 There is no term or condition of the contract that makes payment of the compensation amount conditional upon the continued existence of the Native Title claims.24 That is true. [20] However, the NTA status of the Bidjara Claimants is central to the agreement because of the context in which the agreement was negotiated and the particular features of the agreement itself. [21] The agreement was negotiated and entered into in exercise of procedural rights under the NTA, dependent on the existence of a registered Native Title claim.25 That 20 Applicants’ submissions filed 9 June 2017, at para 11. 21 Applicants’ submissions filed 9 June 2017, at para 12. 22 Aboriginal Cultural Heritage Act 2003 s 34(1)(b)(i). 23 Applicants’ submissions filed 9 June 2017, at para 6 24 Applicants’ submissions filed 9 June 2017, at para 8. 25 Native Title Act 1993 (Cth) ss 29, 30, 31. -- 7 of 13 -- 8 process is intended to ensure every reasonable effort is made to secure the agreement of Native Title holders before their rights and interests are affected.26 [22] The recital clause names the Bidjara parties by reference to the particular Federal Court proceedings then on foot, which were claims for the determination of Native Title by each of the Bidjara claim groups. [23] The definitions used for the agreement directly link the agreement to the NTA regime.27 The key definitions use terms defined in the NTA and the agreement adopts those definitions. [24] The term Bidjara Claimants is defined as the living Registered Native Title Claimants for the Bidjara Claims from time to time and who, at the commencement date, were the named individuals for those claims. Under the NTA, Registered Native Title Claimants are those persons whose 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.28 [25] In the agreement, the Bidjara Claim Groups are the members of the Native Title Claim Group represented in the Bidjara People Claim and the Bidjara People #7 Claim Group and persons eligible to be members of either Native Title Claim Group. [26] Under the NTA, the concept of a Native Title Claim Group is linked to an application for determination of Native Title made to the Federal Court. The Native Title claim group is specified in that application.29 They are the persons who, according to their traditional laws and customs, hold common or group rights and interests comprising the particular Native Title claimed.30 26 See the preamble of the Native Title Act 1993 (Cth) which provides: It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done. 27 Agreement commencing 18 February 2014, at cl 1.1 Definitions. 28 Native Title Act 1993 (Cth) s 253. 29 Native Title Act 1993 (Cth) s 253. 30 Native Title Act 1993 (Cth) s 61(1). -- 8 of 13 -- 9 [27] The agreement purports to bind not only the current members of the relevant claim group. The definitions pick up any claimants from time to time and any persons eligible to be members of either claim.31 It also purports to bind those persons, including after the claims have been determined.32 [28] The substantive obligations and benefits under the agreement also arise only in the context of a claim for or a determination of Native Title. [29] The Bidjara Claimants status as Registered Native Title Claimants was important in the context of the NTA because they were authorised to act as representatives for the Bidjara Claim Group33 and anyone who wanted to deal with the land covered by their claims knew reliably who they should deal with.34 [30] The Bidjara Claimants consented to the acts relating to the tenure. It is not true to say, as Counsel for the applicants did, that those consents mean that Santos has received the full benefit of the agreement and is obliged to compensate the Bidjara Claimants despite any change in their status under the NTA. [31] Firstly, the consents were only of benefit to Santos while the Bidjara Claimants had a claim for or a determination of Native Title within the tenure areas. Secondly, the agreement involves compensation for ongoing obligations which provide for the co- existence of Santos’ activities under the tenures with the exercise by the Bidjara claimants of their Native Title rights and interests. [32] Santos agreed to pay compensation in consideration of the undertakings and consents35 which include the Bidjara Claimants on their own behalf and on behalf of the Bidjara Claim Groups: (a) consenting to the future acts and the conduct of activities in accordance with the tenures;36 31 Agreed statement of facts and issues on behalf of the parties filed 26 May 2017, Annexure A, at cl 1.1. 32 Agreed statement of facts and issues on behalf of the parties filed 26 May 2017, Annexure A, at cl 2.4. 33 Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638 at [27]-[28]. 34 McGlade v Native Title Registrar [2017] FCAFC 10 at [380]-[386]. 35 Agreed statement of facts and issues on behalf of the parties filed 26 May 2017, Annexure A, at cl 6.1. 36 Agreed statement of facts and issues on behalf of the parties filed 26 May 2017, Annexure A, at cl 5.3. -- 9 of 13 -- 10 (b) undertaking not to challenge the validity of the tenures or take other specified action in relation to them or Santos’ activities;37 (c) undertaking to take all reasonable steps to ensure there is express recognition in a Native Title determination that Santos’ rights under their tenures prevail over the exercise of their native title rights and interests;38 and (d) undertaking to use reasonable endeavours to do all things reasonably necessary to ensure a Registered Native Title Body Corporate (for a native title determination within the project area arising from their claim) agrees to be bound by the agreement and acts consistently with it.39 [33] It is their status as registered Native Title claimants that allows them to provide consideration under the agreement for the compensation offered by Santos. They apply prior to the grant of the petroleum tenures and afterwards. [34] Given those features of the agreement and the legislative framework in which it was negotiated, I accept Santos’ submission that the ongoing status of the Bidjara Claimants as Registered Native Title Claimants and the Bidjara Claim Groups as Native Title Groups is a common assumption that is essential to the performance of the agreement. The dismissal of the Bidjara Claims has resulted in a fundamentally different situation than that contemplated by the agreement.40 [35] The fundamental purpose of the agreement is to allow the Petroleum Leases to be granted (and land added to the Authority to Prospect) and for Santos’ activities under the tenures to proceed, while recognising and compensating for the impact of those acts and activities on the Bidjara Claimants Native Title rights and interests. The Bidjara Claims no longer exist, and there are no Bidjara Claimants or Bidjara Claim Groups. While the agreement provides for the parties’ obligations upon the claims being determined, the agreement does not deal with their rights or obligations if the claims were dismissed. 37 Agreed statement of facts and issues on behalf of the parties filed 26 May 2017, Annexure A, at cl 5.6. 38 Agreed statement of facts and issues on behalf of the parties filed 26 May 2017, Annexure A, at cl 3.3. 39 Agreed statement of facts and issues on behalf of the parties filed 26 May 2017, Annexure A, at cl 3.4. 40 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at [356]-[357]. -- 10 of 13 -- 11 [36] The fundamental purpose of the agreement has been frustrated. The parties are, therefore, discharged from their obligations and Santos is not liable to make further payments under the agreement. Is Santos’ liability under the agreement suspended? [37] In the alternative, Santos submitted the Bidjara Claimants cannot comply with their obligations under clauses 6.2 to 6.4 of the agreement, and as a result Santos’ obligations under the agreement are suspended under clause 6.5. The applicants submit that they have performed their contractual obligations under the agreement.41 [38] The agreement provides a detailed process for the Bidjara Claimants to claim and Santos to pay the agreed compensation. [39] The Bidjara Claimants must nominate an incorporated body to receive the compensation payments. The body must meet certain criteria including that it is established for the sole benefit of the Bidjara Claim Groups.42 The Bidjara Claimants must notify Santos of the details of the nominated body and provide documents and information establishing it meets the applicable criteria.43 [40] Santos must notify the Bidjara Claimants whether they are satisfied the nominee meets those criteria. If Santos accepts it does, it must give notice to the Bidjara Claimants to provide a tax invoice for the compensation amount. The Bidjara claimants must then provide the tax invoice and Santos must make the payment.44 [41] Timeframes are set for each of those steps. If it has not received a nomination or accepted the body as meeting the criteria, Santos’ obligations to pay compensation are suspended.45 41 Applicants’ submissions filed 9 June 2017, at para 9. 42 Agreed statement of facts and issues on behalf of the parties filed 26 May 2017, Annexure A, at cl 6.2. 43 Agreed statement of facts and issues on behalf of the parties filed 26 May 2017, Annexure A, at cl 6.3. 44 Agreed statement of facts and issues on behalf of the parties filed 26 May 2017, Annexure A, at cl 6.4. 45 Agreed statement of facts and issues on behalf of the parties filed 26 May 2017, Annexure A, at cl 6.5. -- 11 of 13 -- 12 [42] It is common ground the Bidjara Claimants did not nominate a body to receive the compensation amount prior to issuing an invoice for the 2016 annual compensation amount. The Bidjara Claimants said they did not need to do that. Bidjara Traditional Owners Limited has already been established, nominated and accepted by Santos, which had made payments to it in the past. They argued that, by its past conduct, Santos has accepted Bidjara Traditional Owners Limited as the Nominated Body for all payments under the agreement.46 [43] Santos argued the nomination and acceptance was a pre-condition to each payment. It submitted the Bidjara Claimants cannot fulfil the requirement to notify a body established for the sole benefit of the Bidjara Claim Groups, either for the 2016 payment or for any subsequent annual payment. The Bidjara Claim Groups, as defined in the agreement, no longer exist. No body, therefore, can be established for their sole benefit. I have already given my reasons for accepting that the Bidjara Claim Groups no longer exist as defined in the agreement. [44] The Court must interpret the agreement by determining the objective intention of the parties, by reading the words of the agreement as a whole.47 On its face, clause 6.4 does not confine to the initial claim the requirement to establish (or identify), notify and have accepted a suitable body to accept compensation. It provides a step by step process before Santos must make the “relevant payment”. That clearly contemplates the process is followed for each payment. Further, schedule 1 provides each of the payments is subject to clause 6 of the agreement, a further indication the process of nomination and acceptance applies to all of them. [45] There are pragmatic reasons for requiring the process to be undertaken for each claim. The term of the agreement is six years, with payments being made each year. If the nomination and approval process was confined to the first payment, there would be nothing to prevent the nominated body from changing its constitution to allow it to benefit persons other than the Bidjara Claim Groups. Or, if the Bidjara Claimants wanted to change the nominated body, their proposed construction of the 46 Applicants’ submissions filed 9 June 2017, at para 3. 47 Australian Broadcasting Commission v Australasian Performing Right Assn Ltd (1973) 129 CLR 99 at 109. -- 12 of 13 -- 13 agreement would prevent them from doing so. In either case, the result is unreasonable, unjust or inconvenient.48 [46] As matters stand, the Bidjara Claimants have not nominated a body that meets the required criteria. The Bidjara Claim Groups’ status under the agreement rests on claims for determination of Native Title which have been dismissed. If I am wrong in my conclusion that the agreement has been frustrated, I would declare Santos’ liability to make further payments under the agreement have been suspended. Conclusion [47] The result of my findings is that the agreement has been frustrated or Santos’ liability under the agreement has been suspended. In either case, the application must be refused. Unless a party applies for an order for costs within seven days, there will be no order as to costs. Order 1. The application is refused. FY KINGHAM PRESIDENT OF THE LAND COURT 48 Australian Broadcasting Commission v Australasian Performing Right Assn Ltd (1973) 129 CLR 99 at 109. -- 13 of 13 --