Colin McLennan & Ors (Jangga People)/Queensland/Rem Resources Pty Ltd

[2012] NNTTA 6

NATIONAL NATIVE TITLE TRIBUNAL

Colin McLennan & Ors (Jangga People)/Queensland/Rem Resources Pty Ltd,
[2012] NNTTA 6  (27 January 2012)

Application No:        QO11/123

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Colin McLennan, James Gaston, Thomas Brown, Tyrone Tiers, Dorothy Hustler, and Marie McLennan on behalf of the Jangga People

(native title party)

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The State of Queensland   (government party)

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Rem Resources Pty Ltd  (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:        John Sosso
Place:              Brisbane
Date:               27 January 2012

Catchwords:   Native title – future act – proposed grant of exploration permit – expedited procedure objection application – native title party failed to comply with directions – expedited procedure objection application dismissed.

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

Cases:Dixon v Northern Territory (2002) 169 FLR 103

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

1. On 4 March 2011, 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 Permit for Coal, EPC 2160 (“the proposed tenement”) to Rem Resources Pty Ltd (“grantee party”) and included a statement that it considered that this proposed future act attracted the expedited procedure. Pursuant to s. 29(4) 30 March 2011 was specified as the notification day.

2. On 29 July 2011, Dillon Lawyers, lodged with the National Native Title Tribunal (“Tribunal”), an expedited procedure objection application pursuant to s. 32(3) on behalf of the Jangga People (“native title party”).

3. On 2 August 2011, Deputy President Sumner, as delegate to the President, appointed me as the Member to constitute the Tribunal for the purpose of the expedited procedure objection inquiry.

4. By letter received on 19 December 2011, the grantee party advised the Tribunal that they did not wish to negotiate an agreement with the native title party. At the status conference convened on that day I made Directions for the conduct of an inquiry.  The Directions in part, read as follows:

   “(1) On or before 25 January 2012, the legal representative of the native title party is to advise the Tribunal in writing if it holds instructions to comply with the Directions made 19 December 2011 and provide contentions to enable the making of a determination.

   (1A)Should the native title party not advise that it holds such instructions by close of business 25 January 2012 the Tribunal, pursuant to s 148(b) of the native Title Act, shall forthwith, dismiss the Expedited Procedure Objection Application.”           

5. As no advice from the native title party had been received by close of business on 25 January 2012 the expedited procedure objection application was dismissed on that day in accordance with Direction 1A.

6. The principles governing the making of “springing” or  “guillotine” Directions were explained in Dixon v Northern Territory (2002) 169 FLR 103. I adopt those principles for the purpose of this decision. In this matter the grantee party did not wish to reach agreement with the grantee party. Where the Tribunal is informed that negotiation has been unsuccessful and one of the parties is not willing to prosecute the expedited procedure objection application, the Tribunal is empowered either to dismiss the application immediately (see Noy v Northern Territory (2003) 174 FLR 366) or make springing directions. In this matter I determined that the making of Springing Directions with a very short time frame was the more appropriate course of action.

7. The Springing Direction, having required the native title party to submit evidence by close of business on 25 January 2012, was activated at that time by the failure of the native title party to comply.

Decision

[11] The expedited procedure objection application in relation to EPC 2160 is dismissed pursuant to s. 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Deputy President