Christopher Dunrobin & Ors (Wiri People #2)/ Queensland/Australia Oriental Minerals Nl

[2006] NNTTA 81

NATIONAL NATIVE TITLE TRIBUNAL

Christopher Dunrobin & Ors (Wiri People #2)/ Queensland/Australia Oriental Minerals NL; [2006] NNTTA 81 (28 June 2006)

Application Nos:       QO06/21, & QO06/23

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of inquiries into expedited procedure objection applications

Christopher Dunrobin and Ors (Wiri People #2)             (native title party)

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The State of Queensland   (government party)

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Australia Oriental Minerals NL   (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Tribunal:        John Sosso
Place:              Brisbane
Date:               28 June 2006

Catchwords:   Native title – future acts – proposed grant of exploration licences - expedited procedure applications – native title party’s claimant application dismissed by Federal Court - objection application dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 30, 32, 75, 148(a), 253

Cases:Martin/Western Australia/Westland Gold NL & Ors [1999] NNTTA 228 (17 August 1999)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

[1] On 23 November 2005, the Department of Natural Resources, Mines and Water on behalf of 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 Permits Mineral 14501 and 14502 (the proposed tenements) to Australia Oriental Minerals NL (grantee party), and included in the notices a statement that it considered that the grants attracted the expedited procedure.

[2] On 23 March 2006, Christopher Dunrobin & Others on behalf of Wiri People #2 native title determination application - QUD6251/98 – (the native title party), lodged with the National Native Title Tribunal (the Tribunal), expedited procedure objection applications pursuant to section 32(3).

1. On 30 March 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 inquiries.

1. On 19 June 2006 the Federal Court ordered that, pursuant to a self executing Order of 6 October 2005 which had taken effect, the Wiri People #2 native title determination application stood dismissed. Leave to appeal the self executing Order of 6 October 2005 was refused and an extension of time for compliance with the 6 October 2005 order was also refused.  Leave to appeal the decision not to grant an extension of time for compliance was granted.

1. Only a “native title party” can lodge with the Tribunal an expedited procedure objection application – ss 32(3) and 75. The term “native title party” is defined by ss 29 and 30. Unless there has been a determination of native title over the relevant area (which is not the case in these matters) a “native title party” is any registered native title claimant – s 30(1). That term is defined in section 253 as follows: “a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.” Importantly, section 30(2) provides that a person ceases to be a native title party if the person ceases to be a registered native title claimant.”

1. Clearly unless there is a registered native title claimant at all times from the lodging of the expedited procedure objection application to a final determination of the objection by the Tribunal, there is no native title party and thus the legal basis for conducting an inquiry disappears.  So much was decided by Deputy President Sumner in Martin/Western Australia/Westland Gold NL & Ors [1999] NNTTA 228 (17 August 1999). So far as is relevant Deputy President Sumner said (at p 4):

   “Without a registered native title claimant, there is no longer a native title party under the old or new right to negotiate provisions and hence no one with status to make (s 75) and prosecute objection application …. It would not make sense for the Tribunal to be required to conduct an inquiry and make a determination when there is no longer a native title party to make the objection application.”

1. In these matters the situation is even starker than a native title determination application failing the registration test which was dealt with by Deputy President Sumner. In this case there is no longer a native title determination application per se. Clearly, when a native title determination application is either withdrawn or struck out, the fundamental jurisdictional pre-condition for the Tribunal to conduct an expedited procedure objection inquiry is removed. The Tribunal no longer has jurisdiction as there is no longer a valid expedited procedure objection to deal with. The only course of action open to the Tribunal is to formally dismiss the “objection” pursuant to section 148(a), namely that the Tribunal is satisfied that it is not entitled to deal with the application.

1. The Tribunal is required to deal promptly with these matters as the Act demonstrably requires expedited procedure objection inquires to be conducted in a fair but speedy fashion. In the past the Tribunal has exercised its discretion under section 148(a) even though the applicant has filed a review application with the Federal Court. In these matters there is no information before the Tribunal as to whether an appeal will be filed against the Orders of the Federal Court. In any event, even if there were, the Act contemplates that the Tribunal will not stay expedited procedure objection inquiries for any period of time. The sheer number of applications that are lodged every year in Queensland, the importance of the mining industry to the economic well-being to both the Queensland and regional economies and the legislative requirement that “expedited” procedure inquiries be conducted expeditiously, cumulatively lead to the conclusion that the balance of fairness lies with dismissal pursuant to section 148.

Decision

1. The expedited procedure objection applications lodged by the Wiri People #2 (QO06/21 and QO06/23) are dismissed pursuant to section 148(a) of the Native Title Act 1993 (Cth).

John Sosso
Member