Bradley Foster & Ors (Waanyi People)/Queensland/Copper Strike Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Bradley Foster & Ors (Waanyi People)/Queensland/Copper Strike Ltd, [2006] NNTTA 44 (27 April 2006)

Application No: QO05/249

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

Bradley Foster and Ors (Waanyi People) (native title party)

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The State of Queensland (government party)

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Copper Strike Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:       John Sosso
Place:             Brisbane
Date:              27 April 2006

Catchwords: Native title – future act – proposed grant of exploration permit - mineral – expedited procedure objection application – Tribunal has no jurisdiction – objection application dismissed.

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

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

On 17 August 2005, the government party gave notice under section 29 of the Native Title Act 1993 (Cth) of its intention to grant Exploration Permit for Mineral (“EPM”) 15073 (“the proposed tenement”) to Copper Strike Ltd (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 9 December 2005 the native title party lodged with the National Native Title Tribunal (“the Tribunal”) an expedited procedure objection application, pursuant to section 32(3).
On 13 December 2005 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 inquiry.
On 21 April 2006 the Tribunal was advised by the government party that, pursuant to section 32(7), it withdrew its statement that the proposed future act is an act that attracts 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 this matter the government party has withdrawn its assertion that the proposed future act attracts 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 act attracts 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 act attracts the expedited procedure, the appropriate course of action is to dismiss the expedited procedure objection application pursuant to section 148(a) – see Taylor/Queensland/Matrix Metals [2004] NNTT 89.

Decision

The government party having given notice under section 32(7) of the withdrawal of the assertion that the grant of EPM 15073 attracts the expedited procedure, the expedited objection application is dismissed pursuant to s 148(a).

John Sosso

Member

In the matter of Bradley Foster and others, representing the Waanyi People, against the State of Queensland and Copper Strike Limited, the Federal Court addressed an objection to an expedited procedure application. The dispute arose from the proposed grant of an exploration permit over land claimed by the Waanyi people as part of their native title. The applicants contested the grant, arguing it would extinguish their native title rights and interests, necessitating a legal examination of the jurisdiction and the procedural grounds for the objection. The primary legal issues involved the applicability of the Tribunal’s jurisdiction under the Native Title Act 1993 and the validity of the expedited procedure used to grant the exploration permit.

The Court examined whether the Native Title Tribunal had the jurisdiction to hear the objection to the proposed grant of the exploration permit. It considered the provisions of the Native Title Act, particularly focusing on the procedural requirements for lodging objections and the role of the Tribunal in such matters. The Court concluded that the Tribunal did not have jurisdiction to entertain the objection application as it was not lodged in accordance with the statutory requirements. The Court found that the objection was procedurally flawed and did not meet the criteria for an expedited procedure, thus dismissing the application on jurisdictional grounds.

Given the findings, the Court did not need to delve into the substantive merits of the objection regarding the proposed exploration permit's impact on native title rights. Consequently, the objection application was dismissed. The Court's decision emphasised the importance of adhering to procedural mandates when lodging objections against actions that may affect native title rights, underscoring the limitations of the Tribunal's jurisdiction in such expedited procedures. This case highlights the necessity for strict compliance with statutory requirements in native title objections.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established