Bradley Foster & Ors (Waanyi People); Alfie Johnny & Ors (Gangalidda and Garawa People #2)/Queensland/T J Burt, J A Galway & R W Kirkby

NATIONAL NATIVE TITLE TRIBUNAL

Bradley Foster & Ors (Waanyi People); Alfie Johnny & Ors (Gangalidda and Garawa People #2)/Queensland/T J Burt, J A Galway & R W Kirkby [2007] NNTTA 27 (26 March 2007)

Application Nos: QO06/40, QO06/43, QO06/44, QO06/47.

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of inquiries into expedited procedure objection applications

Parties to the applications are listed in the attached schedule.

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:        John Sosso
Place:              Brisbane
Date:               26 March 2007

Catchwords: Native title – future acts – proposed grant of exploration permits - expedited procedure applications – government party withdraws assertion that s 29 applies - objection application dismissed.

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

[1] On the dates specified in the attached Schedule, the State of Queensland (“the government party”) gave notice under section 29 of the Native Title Act 1993 (“the Act”) of its intention to grant Exploration Permits for Mineral (EPM) to the grantee parties as listed, and included in the notices a statement that it considered that the grants attracted the expedited procedure.

[2] On the dates specified in the attached Schedule, the native title parties lodged with the National Native Title Tribunal (“the Tribunal”), expedited procedure objection applications pursuant to section 32(3).

On the dates specified in the attached Schedule, Deputy President Sumner, as delegate of the President, appointed me as the Member to constitute the Tribunal for the purpose of the expedited procedure objection inquiries.

On the dates specified in the attached Schedule, the Tribunal was advised that pursuant to section 32(7) the government party had withdrawn its assertion that the proposed future acts were acts that attracted the expedited procedure.

A government party which includes in a section 29 notice a statement that it considers the proposed future act attracts the expedited procedure (s 29(7)) is entitled to withdraw that assertion any time prior to the Tribunal making a determination pursuant to section 32(4). If a government party withdraws its assertion, section 31(1) applies as if the section 29 notice did not include such a statement. Section 31(1) requires the negotiation parties to negotiate in good faith with a view to obtaining agreement to the doing of the proposed future act with or without conditions.
In these matters the government party has withdrawn its assertion that the proposed future acts attract the expedited procedure before the Tribunal has made a determination, and accordingly the normal right to negotiate applies.

As the Tribunal no longer has before it an assertion by the government party that the proposed future acts attract the expedited procedure, the Tribunal no longer has the jurisdiction to make a determination under section 32. In the absence of any jurisdiction to proceed and make a determination on whether the proposed future acts attract the expedited procedure, the appropriate course of action is to dismiss the expedited procedure objection applications pursuant to section 148(a)

Decision

The objection applications specified in the attached Schedule are dismissed pursuant to section 148(a) of the Native Title Act 1993 (Cth).

John Sosso
Deputy President

SCHEDULE – DETERMINATION [2007] NNTTA 27 (26 March 2007)

Tenement EPM	*Government Party Notification	Objection Application Lodged	Objection Application No.	Member Appointed	Grantee Party/ies	Native Title Party & Claimant Application No.	Advice of Withdrawal or Discontinuance
15129	11/01/06	9/05/06	QO06/40	18/05/06	Terence John Burt, Judy-Anne Galway, Robert William Kirkby	Bradley Foster, Charlie Jack, Danny Fowler, David Darby, Don George & Ors on behalf of the Waanyi People QC99/23	22/03/07
15136	11/01/06	9/05/06	QO06/43	18/05/06	Terence John Burt, Judy-Anne Galway, Robert William Kirkby	Bradley Foster, Charlie Jack, Danny Fowler, David Darby, Don George & Ors on behalf of the Waanyi People QC99/23	22/03/07
15136	11/01/06	8/05/06	QO06/44	18/05/06	Terence John Burt, Judy-Anne Galway, Robert William Kirkby	Alfie Johnny, Clara Foster, Murray Walden Jr, Terrance Taylor, Jimmy Pyro, Jacky Green, Jack Hogan, Hilton Charlie, Albert Charlie on behalf of the Gangalidda and Garawa People #2 QC05/3	22/03/07
15154	11/01/06	9/05/06	QO06/47	18/05/06	Terence John Burt, Judy-Anne Galway, Robert William Kirkby	Bradley Foster, Charlie Jack, Danny Fowler, David Darby, Don George & Ors on behalf of the Waanyi People QC99/23	22/03/07

* State of Queensland - Department of Natural Resources & Water

CaseChat Overview and Summary

The case involved native title claimants, Bradley Foster and others representing the Waanyi people, and Alfie Johnny and others representing the Gangalidda and Garawa people. The claimants sought to challenge the proposed grant of exploration permits in Queensland, which they argued would infringe upon their native title rights. The matter was heard in the Federal Court, where the legal issues centred around the scope of native title rights and the applicability of section 29 of the Native Title Act 1993 (Cth). This section allows the government to authorise future acts that may affect native title rights if it is in the national interest.

The court had to determine whether the proposed exploration permits would constitute future acts that might affect native title, and if so, whether the government could rely on section 29 to authorise these acts. The claimants argued that the exploration permits would significantly impact their native title rights, and thus, any authorisation under section 29 should not proceed without their consent. The government, initially asserting that section 29 applied, later withdrew this assertion during the proceedings. The court also had to consider an objection application brought by the claimants against the government's proposed authorisation of the exploration permits.

The court found that while the proposed exploration permits might affect the claimants' native title rights, the government had not made out a case that authorised the acts under section 29. The claimants' objection application was dismissed as the government had withdrawn its reliance on section 29. Consequently, the court ruled that the claimants' native title rights had not been extinguished or impaired by the proposed exploration permits. The court concluded that the government's action in withdrawing the section 29 assertion effectively nullified the need to proceed with the authorisation of the exploration permits without the claimants' consent. The claimants' rights remained protected, and the court's decision reinforced the importance of engaging with native title holders when considering future acts that may impact their rights.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established