Bidjara People #7 v Waratah Coal Pty Ltd and Another - [2016] NNTTA 9

NATIONAL NATIVE TITLE TRIBUNAL

Bidjara People #7 v Waratah Coal Pty Ltd and Another [2016] NNTTA 9 (3 February 2016)

Application No: QO2015/0043

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Arwa Waterton and others on behalf of the Bidjara People #7 (QC2012/018)
(native title party)

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The State of Queensland (Government party)

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Waratah Coal Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Mr JR McNamara, Member
Place:  Brisbane
Date:  3 February 2016

Catchwords: Native title – future act – proposed grant of mineral development licence – expedited procedure objection application – no evidence from the native title party – failure to proceed within a reasonable time – failure to comply with a Direction of the Tribunal – objection application dismissed

Legislation:Native Title Act 1993 (Cth), ss 29, 31(3), 148(b), 150, 237

Cases: Teelow v Page (2001) 166 FLR 266 (‘Teelow v Page’)
Western Australia/Wilma Freddie/Anthony Cross and Deague Holdings Pty Ltd, NNTT WO99/273, [2000] NNTTA 235 (‘Wilma Freddie v Deague Holdings’)

Representative of the
native title party: Trevor Robinson, South West Projects

Representative of the

Government party: Chris Rawlings, Department of Natural Resources and Mines

Representative of the

Grantee party: Kane Jones, Waratah Coal Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 5 November 2014, the Queensland State Government (‘the State’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant Mineral Development Licence 481 (‘the MDL’) to Waratah Coal Pty Ltd (‘Waratah Coal’) subject to the expedited procedure.
The MDL overlaps two registered native title claims by 100 per cent: the Wangan and Jagalingou People (QC2004/006) and the Bidjara People #7 (QC2012/018). The effect of including an expedited procedure statement in the public advertisement for the MDL is that the State considers the grant can be made expeditiously without negotiation between the Wangan and Jagalingou People and the Bidjara People #7, the State, and Waratah Coal.
The Bidjara People #7 lodged an objection with the National Native Title Tribunal (‘the Tribunal’) against the State’s inclusion of the expedited procedure statement, on 7 April 2015. No objection was lodged by the Wangan and Jagalingou People. I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry to determine whether the expedited procedure applies to the MDL.
This decision concerns only the objection to the expedited procedure made by the Bidjara People #7.

Should the inquiry proceed or should the matter be dismissed?

Between lodgement of the objection and September 2015 there was some engagement between representatives of Waratah Coal and Mr Robinson representing the Bidjara People #7, regarding resolution of the objection.
The Tribunal convened five ‘status conferences’ for the purpose of determining how the matter was to proceed, that is, by agreement or through the holding on an inquiry. Arising from the status conferences the Tribunal understood that the possibility of agreement was discussed between Waratah Coal and the Bidjara People #7. However, in correspondence from Waratah Coal emailed to the Tribunal on 24 September 2015 Waratah Coal submitted that it was apparent the Bidjara People #7 did not intend to withdraw their objection, and requested that the matter be set down for mediation or formal inquiry. Correspondence from Mr Robinson also dated 24 September 2015 recorded that the Bidjara People #7 objection was maintained and their position was that their ‘view’ could only be addressed through a negotiated agreement ‘that provides a degree of certainty in the proper protection and management of Bidjara cultural heritage’.
Accordingly, at the fifth status conference on 25 September 2015, I made directions for an inquiry into whether the expedited procedure applies to the grant of the MDL. These directions required the submission of a statement of contentions and supporting evidence by the Bidjara People #7, Waratah Coal and also the State, by particular dates.
Because the normal negotiation procedure does not apply if the expedited procedure is asserted (unless a determination is made that it doesn’t apply), the Tribunal cannot conduct mediation under s 31(3) of the Act. However, if, as in this case, an application is the subject of a Tribunal inquiry the President can, pursuant to s 150 of the Act, direct the holding of a conference of the parties or their representatives to help in resolving any matter relevant to the inquiry. A ‘s 150 conference’ is usually conducted by the Tribunal in a similar fashion to mediation. In this matter, the possibility of a s 150 conference was brought to the attention of the parties in correspondence accompanying the directions made on 25 September 2015. Parties were invited to advise the Tribunal by 30 September 2015 whether they wished to participate in a s 150 conference. The possibility was again raised with Mr Robinson in a telephone conversation with a member of staff assisting the Tribunal on 14 October 2015. No party requested a s 150 conference at any point.
The State provided its material in accordance with the dates set out in the 25 September 2015 directions. Neither the Bidjara People #7 nor Waratah Coal provided any material.
The Tribunal’s email attaching the directions noted that ‘if the objector/applicant fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application.’ This comes from s 148(b) of the Act and the section says the Tribunal may dismiss an application at any stage of an inquiry (my emphasis).
Mr Robinson spoke to a member of staff assisting the Tribunal over the phone, about the Bidjara People #7’s inability to access the area of the MDL in order to collect evidence for the inquiry. The Bidjara People #7 were due to submit material on 6 November 2015. On 12 November 2015, the member of staff assisting the Tribunal emailed Mr Robinson, noting the concerns he’d previously raised over the phone. The email also set out options, including that Mr Robinson could request the directions be amended to allow more time for the Bidjara People #7 to make submissions. The email informed Mr Robinson that ‘if we don’t hear anything the Member may make a decision dismissing the application’. On 23 November 2015 an email was sent following up with Mr Robinson after no response had been received. On the same day Mr Robinson replied by email saying ‘Bidjara is unable to meet the directions of Member McNamara simply on the basis that Bidjara does not have the resources to do what is being asked nor do they have access to the identified area of MDL481. Essentially, there are no provisions within the Queensland Aboriginal Heritage Act that allows access by the Aboriginal party.’
The Bidjara People #7 have not made any request to amend directions to allow more time to lodge submissions. The State or Waratah Coal have not made any request to dismiss the objection.
In Teelow v Page (at [13]) the Tribunal set out the principles applicable when considering dismissal of an objection application, which I have had regard to in this matter. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.
In Wilma Freddie v Deague Holdings the Tribunal (at [6]) said, when an objection is lodged, the objector should be in a position to support it. I agree with that approach. It also said (at [9]) that an objection is predicated on the native title party’s knowledge of community or social activities and areas or sites of particular significance in the tenement area, which go to two of the criteria for the expedited procedure, set out in s 237 of the Act. I also agree with that point.
In this matter, the Bidjara People #7 said they do not have the resources or the ability to access the area of the MDL to collect evidence. However, they haven’t provided information about any attempts to access the area or to identify individuals within the claim group who speak for that country and who might be able to provide information about the sorts of things talked about in s 237 of the Act.
The State filed material in accordance with directions on 9 October 2015. Included in their material was certain tenure information about the MDL, including a description of underlying land tenure, being a lands lease and a national park. The accompanying map suggests the considerable majority of the MDL application area is over national park – which is publicly accessible.
It appears the Bidjara People #7 have made little effort to progress their objection. When lodging the objection they should have been in a position to support and proceed with it in a reasonable time, which clearly they were not, as they were not able to comply with the directions of the Tribunal. The Bidjara People #7 have been given sufficient opportunity to comply with directions, as well as opportunities to seek an extension of time in order to do so. It would be unfair to prejudice the other parties with further delays.
For these reasons, I have decided that I do not need to answer the question of whether the MDL can be granted in an expedited way because I have chosen to exercise the power set out in s 148(b) of the Act in dismissing the expedited procedure objection application.

Determination

The determination of the Tribunal is objection QO2015/0043 to the grant of MDL481 is dismissed.

Mr JR McNamara
Member
3 February 2016