Ada Walden & Ors (Waanyi People)/Queensland/Australia Minerals and Mining Group Ltd

[2012] NNTTA 3

NATIONAL NATIVE TITLE TRIBUNAL

Ada Walden & Ors (Waanyi People)/Queensland/Australia Minerals and Mining Group Ltd, [2012] NNTTA 3 (18 January 2012)

Application No:        QO10/239

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Ada Walden, Dawn Aplin, Malcolm George, Eunice O’Keefe and Fred O’Keefe on behalf of the Waanyi People   (native title party)

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The State of Queensland   (government party)

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Australia Minerals and Mining Group Ltd                      (grantee parties)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:   John Sosso
Place:                           Brisbane
Date of dismissal:        16 January 2012
Date of reasons:         18 January 2012

Representatives:         

Native title party:       Mr Andrew Preston

Government party:    Ms Sara Newrick, Department of Employment, Economic Development & Innovation

Grantee party:            Greg Abbott, M & M Walter Consulting

Catchwords:             Native title – future act – proposed grant of exploration permit (EPM) - expedited procedure objection application – inability to finalise negotiations – springing directions - failure to comply with Directions – expedited procedure objection application dismissed.

Legislation:Native Title Act 1993 (Cth) ss. 29, 31, 32, 148(b).

Cases:Dixon v Northern Territory (2002) 169 FLR 103

Noy v Northern Territory (2003) 174 FLR 366

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

[1] On 5 August 2010, the State of Queensland (government party) gave notice under s. 29 of the Native Title Act 1993 (Cth) (the “Act”) of its intention to grant Exploration Permit (EPM 18375) to Australia Minerals and Mining Group Ltd (“the grantee party”), and included in the notice a statement that it considered that the grant attracted the expedited procedure. For the purpose of s. 29(4)(a), the notification day was specified as 15 September 2010.

[2] On 15 December 2010 the legal representative of the Waanyi People (“native title party”) lodged with the National Native Title Tribunal (“the Tribunal”), an expedited procedure objection application pursuant to s. 32(3).

1. On 10 January 2011 the President, Graeme Neate, appointed me as the Member to constitute the Tribunal for the purpose of the expedited procedure objection inquiry.

2. It is the practice in Queensland for the Tribunal to convene Status Conferences where each of the parties indicates whether they wish to negotiate a consensual outcome.  If the parties are actively engaging in negotiations, or at least taking the necessary steps to enable such negotiations to occur, the Tribunal will not make Directions for the holding of an inquiry.  Directions are only made when it is clear that one or more of the parties does not wish to negotiate or, for whatever reasons, negotiations have failed or stalled.  Accordingly in most instances, Directions are only made some time into the process.

3. Representatives for the parties appeared regularly at status conferences convened throughout 2011 with adjournments provided to allow the parties to finalise an agreement.

4. By the time the Status Conference was convened on 28 October 2011 no agreement had been finalised.  Directions were made on that date requiring the grantee party to provide a Statement of Contentions and related documents to the Tribunal and each other party by close of business on 25 November 2011. 

5. These Directions were amended at the status conference of 25 November 2010 providing an extension of time for the grantee party to lodge contentions by 19 December 2011.  The grantee party served on the Tribunal and the other parties, its statement of contentions and supporting documents by letter dated 14 December 2011.

6. At the status conference convened on 19 December 2011, it was not clear whether or not the native title party intended to pursue the objection. Further amended Directions were made requiring the native title party to provide its Statement of Contentions and related documents to the Tribunal and each other party by close of business on 16 January 2012. Paragraph 2(A) provided that if the native title party had not complied by close of business on 16 January 2012 the Tribunal, pursuant to s. 148(b) of the Act, would dismiss forthwith the expedited procedure objection application.

7. The principles governing the making of “springing” or  “guillotine” Directions were explained in Dixon v Northern Territory (2002) 169 FLR 103. I adopt those principles for the purpose of this decision. In this matter the native title party has been unable to reach agreement with the grantee party. Where the Tribunal is informed that negotiation has been unsuccessful and the native title party is not willing to prosecute the expedited procedure objection application, the Tribunal is empowered either to dismiss the application immediately (see Noy v Northern Territory (2003) 174 FLR 366) or make springing directions. In this matter I determined that the making of Springing Directions with a very short time frame was the more appropriate course of action.

8. The Springing Direction, having required the native title party to submit evidence by close of business on 16 January 2012, was activated at that time by the failure of the native title party to comply.

Decision

1. The expedited procedure objection application in relation to EPM 18375 is dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth).

John Sosso

Deputy President