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

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).

1. 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.

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specified in the attached Schedule, the Tribunal was advised that pursuant to section 32(7) the government party had withdrawn its assertion that the proposed future acts were acts that attracted the expedited procedure.

1. 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.

2. 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.

1. 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

1. 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