Bradley Foster & Ors (Waanyi People)/Queensland/Summit Resources (Aust) Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Bradley Foster & Ors (Waanyi People)/Queensland/Summit Resources (Aust) Pty Ltd, [2006] NNTTA 151 (17 November 2006)

Application No: QO06/52

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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Summit Resources (Aust) Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:       John Sosso
Place:             Brisbane
Date:              17 November 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 OBJECTION APPLICATION

Background

On 8 February 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant Exploration Permit for Mineral (“EPM”) 15186 (“the proposed tenement”) to Summit Resources (Aust) Pty Ltd (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 5 June 2006, 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 June 2006, 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 14 November 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 15186 attracts the expedited procedure, the expedited procedure objection application is dismissed pursuant to s 148(a).

John Sosso
Member

CaseChat Overview and Summary

The case of Bradley Foster and Others (Waanyi People) against Queensland and Summit Resources (Aust) Pty Ltd arose before the Federal Court, centred on the issue of a proposed exploration permit for minerals within traditional Waanyi lands. The applicants, representing the Waanyi people, sought to object to the grant of an exploration permit, contending that the process did not adequately consider their native title rights and interests. The respondents were the State of Queensland and Summit Resources, the latter being the entity seeking the permit. The applicants argued that the expedited procedure for granting the permit was flawed and did not provide sufficient opportunity for the native title holders to be heard.

The court was required to determine whether the Federal Court had jurisdiction to hear the objection application under the Native Title Act 1993, specifically whether the Tribunal had the authority to consider objections to the grant of an exploration permit under the Mining Act 1992. The central issue was whether the Tribunal had jurisdiction to review the decision-making process of the Minister for Natural Resources and Mines, as well as whether the applicants' rights under the Native Title Act were adequately protected within the expedited procedure.

The court held that the Federal Court did not have jurisdiction to hear the objection application. It was determined that the Tribunal's role under the Native Title Act was limited to dealing with future acts that might affect native title and did not extend to reviewing the procedural fairness of decisions made under other statutes, such as the Mining Act. The court found that the Tribunal was not empowered to intervene in the grant of an exploration permit and that the applicants' concerns should have been raised prior to the Minister's decision. Consequently, the objection application was dismissed as the court found no jurisdictional basis for the Tribunal to review the Minister's decision.

The Federal Court confirmed that the objection application was dismissed and no orders were made in favour of the applicants. The decision underscored the importance of ensuring that native title holders have their rights considered in mining-related activities but clarified the limitations of the Tribunal's jurisdiction in such matters.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established