David Allie & Ors (Gudjala People), Alfred Nathan & Ors (Pitta Pitta People/ Queensland/ Ausgold Exploration Pty Ltd; Holloman Minerals Pty Ltd

[2009] NNTTA 118

NATIONAL NATIVE TITLE TRIBUNAL

David Allie & Ors (Gudjala People), Alfred Nathan & Ors (Pitta Pitta People/ Queensland/ Ausgold Exploration Pty Ltd, Holloman Minerals Pty Ltd, [2009] NNTTA 118 (2 October 2009)

Application No:        QO08/164 & QO09/104

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

David Allie, Roe Hero, William Santo, Gavin Allingham, Allan Huen, Gloria Santo on behalf of the Gudjala People   (native title party)

- and -

Alfred Nathan, Henry Marion, Neville Aplin, Alice James and Jean Jacks on behalf of the Pitta Pitta People  (native title party)

- and -

The State of Queensland   (government party)

- and -

Ausgold Exploration Pty Ltd  (grantee party)

- and -

Holloman Minerals Pty Ltd  (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Tribunal:                   John Sosso
Place:                         Brisbane
Date of dismissal:      2 October 2009

Representatives:         

Native title parties:    Ms Kate McKenzie;

Ms Andrea Olsen, Queensland South Native Title Services

Government party:     Ms Sara Newrick, State of Queensland.

Grantee parties:         Ms Alicia Tongpao, Hetherington Exploration & Mining Title Services Pty Ltd; 

Mr James Sunter, Environmental & Licensing Professionals Pty Ltd.

Catchwords:             Native title – future act – proposed grant of exploration permits - expedited procedure objection applications – government party withdraws assertion that s 29 applies – no jurisdiction – expedited procedure objection applications dismissed.

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

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

[1] On the dates specified in the Schedule, the State of Queensland (“the government party”) gave notice under s. 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant Exploration Permits for Mineral (EPM) to the grantee parties as specified in the attached Schedule. The notices included a statement that it considered that the grants attracted the expedited procedure and specified the dates for notification for the purpose of s 29(4)(a).

[2] On the dates specified in the Schedule, the native title parties lodged with the National Native Title Tribunal (“the Tribunal”), expedited procedure objection applications pursuant to s. 32(3).

[3]        On the dates specified in the 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.

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

[5] A government party which includes in a section 29 notice a statement that it considers the proposed future act attracts the expenditure procedure (s 29(7)) is entitled to withdraw that assertion at 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 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.

[6]        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.

[7] 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

[8] The expedited procedure 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 [2009] NNTTA 118 (2 October 2009)

Tenement	Government Party Notification	Notification Day s 29(4)(a)	Objection Application Lodged	Objection Application No.	Member Appointed	Grantee Party	Native Title Party & Application No.	Advice of withdrawal or Discontinuance
EPM 17068	16/09/08	15/10/08	13/11/08	QO08/164	1/12/08	Ausgold Exploration Pty Ltd	David Allie, Roe Hero, William Santo, Gavin Allingham, Allan Huen, Gloria Santo on behalf of the Gudjala People QC05/6	2/10/09
EPM 17510	8/01/09	18/02/09	17/06/09	QO09/104	14/07/09	Holloman Minerals Pty Ltd	Alfred Nathan, Henry Marion, Neville Aplin, Alice James and Jean Jacks on behalf of the Pitta Pitta People QC99/27	2/10/09