Birriah People v Forte Consolidated Limited and Another

[2014] NNTTA 24

NATIONAL NATIVE TITLE TRIBUNAL

Birriah People v Forte Consolidated Limited and Another, [2014] NNTTA 24 (6 March 2014)

Application No:        QO2014/0024

IN THE MATTER of the Native Title Act 1993 (Cth)

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

Gracelyn Smallwood, Algon Walsh Jnr, Colin McLennan, David

Miller and Frank Fisher on behalf of the Birriah People (native title party)

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Forte Consolidated Limited (grantee party)

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The State of Queensland (Government party)

DECISION NOT TO ACCEPT EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:          President Raelene Webb QC
Place:                Brisbane
Date of decision:                  6 March 2014

Representative of the           Mr Michael Owens

native title party:

Catchwords:   Native title – future act – proposed grant of exploration permit –     expedited procedure objection application – expedited procedure objection application not accepted – materials and fees to accompany applications – prescribed documents and prescribed fee – no evidence that no fee payable

Legislation:Acts Interpretation Act 1901 (Cth), s 36

Native Title Act 1993 (Cth) ss 29, 32, 76, 77
Native Title (Tribunal) Regulations 1993 (Cth) Regulation 8

REASONS FOR DECISION NOT TO ACCEPT EXPEDITED PROCEDURE OBJECTION APPLICATION

1. 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 for Minerals 25196 (‘the proposed licence’) to Forte Consolidated Limited (‘grantee party’). The notice specified the notification day as 23 October 2013 and included a statement, pursuant to s 29(7) of the Act, that the Government party considered that the proposed future act attracted the expedited procedure.

2. Section 32 of the Act deals with proposed future acts where the Government party asserts the expedited procedure. Subsection 32(3) provides that a native title party may, within a period of four months after the notification day, lodge an objection with the National Native Title Tribunal (‘the Tribunal’) against the inclusion of the statement. The four month closing day for the lodgement of objections in respect of the proposed licence became the next business day of 24 February 2014 by operation of s36(2) of the Acts Interpretation Act 1901 (Cth).

3. If the native title party does not lodge an objection application with the Tribunal in accordance with s 32(3), the Government party may do the act.

4. According to s 76 of the Act, an expedited procedure objection application must [emphasis added] be in the prescribed form, be given to the Registrar, contain the prescribed information and be accompanied by any prescribed documents and any prescribed fee. If the application complies with the requirements of s 76, the Tribunal must accept the application (see s 77 of the Act).

5. Regulation 8 of the Native Title (Tribunal) Regulations 1993 (Cth) (‘the Regulations’) sets out the circumstances when application fees are not payable. Regulation 8(b)(i)(C) states that the fee is not payable if the person liable to pay the fee is the holder of a pensioner concession card. Accordingly, where an objection application is lodged on behalf of a registered native title claimant, the fee is not payable if one of the members of the Applicant is the holder of a valid concession card.

6. On 1 August 2013, the Tribunal sent a letter to stakeholders, including Mr Owens, outlining the Tribunal’s policy that an application must be provided with the prescribed fee or evidence of the fee not being payable and that failure to do so may mean that the application is not accepted.  

7. On 17 February 2014, the Tribunal received an email containing an objection application in respect of the proposed license from Ms Madeline Owens, assistant to Michael Owens, on behalf of the Birriah People.  On that date, the proposed licence overlapped the claim of the Birriah People (QC1998/012), which has been on the Register of Native Title Claims from 2 April 1998.  The covering email to the objection application stated ‘Please also find attached Frank Fishers concession card in order to waive all appropriate fees.’  At the time of the application, the concession card provided was no longer current as the expiry date on the card was 31 January 2014. Accordingly, the provision of the expired card was not grounds for fee exemption under the Regulations.

8. On 18 February 2014, the Tribunal emailed Ms Owens regarding expiration of the concession card and asked for a valid concession card belonging to a member of the Applicant to be provided within 24 hours in view of the fee exemption Regulations. Later that day, Mr Owens responded indicating he could not obtain a valid concession card within the time frame and would endeavour to provide one by 21 February 2014. The Tribunal responded later that day, referring to notification of the Tribunal’s policy on 1 August 2013 and indicating that, in this instance only, additional time would be allowed. The email also detailed that if the evidence was not provided by the four month closing date (24 February 2014) the application may not be accepted by the Tribunal.

[10]   No further correspondence was received from Mr Owens’ office and on 24 February 2014, the objection application was not accompanied by the prescribed fee or evidence of the fee not being payable under Regulation 8.

1. There is no discretion vested in a Member to accept the application without the provision of the prescribed fee (or evidence that it is not payable). The wording and operation of s 76 (d) and the associated Regulations are clear and strict.

Decision

1. The expedited procedure objection application lodged on behalf of the Birriah People in relation to Exploration Permit for Minerals 25196 is not accepted.

President Raelene Webb QC
6 March 2014