David Allie & Ors (Gudjala People)/Queensland/Kagara Copper Pty Ltd

[2009] NNTTA 101

NATIONAL NATIVE TITLE TRIBUNAL

David Allie & Ors (Gudjala People)/Queensland/Kagara Copper Pty Ltd, [2009] NNTTA 101 (1 September 2009)

Application No:        QO08/163 

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

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

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

- and -

The State of Queensland   (government party)

- and -

Kagara Copper Pty Ltd  (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:                   John Sosso
Place:                         Brisbane
Date of dismissal:      28 August 2009
Date of reasons:        1 September 2009

Representatives:         

Native title party:       Ms Kate McKenzie,

Government party:     Ms Sara Newrick, State of Queensland.

Grantee party:           Ms Alicia Tongpao, Hetherington Exploration & Mining Title Services Pty Ltd.

Catchwords:             Native title – future act – proposed grant of exploration licence expedited procedure objection application – inability to finalise negotiations – expedited procedure objection application dismissed.

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

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

Ruby Saltmere (Indjilandji Dithannoi)/Queensland/Savannah Resources Pty Ltd [2005] NNTTA 54 (5 August 2005) Member John Sosso

Teelow v Page (2001) 166 FLR 266

Western Australia v Ward (1996) 70 FCR 265

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

[1] On 9 October 2008, 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 Mineral (EPM) 16929 to Kagara Copper Pty Ltd (“grantee party”). The notice specified 12 November 2008 as the notification day for the purpose of s. 29(4)(a) and included in the notice a statement that it was considered that the grant attracted the expedited procedure.

[2] On 17 November 2008, David Allie, Roe Hero, William Santo, Gavin Allingham, Allan Huen, and Gloria Santo on behalf of the Gudjala People (“the native title party”) lodged with the National Native Title Tribunal (“the Tribunal”) an expedited procedure objection application pursuant to s. 32(3).

1. On 1 December 2008, 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.

2. A Preliminary Conference to deal with this matter was convened on 20 January 2009 and Status Conferences were convened on 20 February, 20 March, 24 April, 3 June, 24 July and 28 August 2009. Initially the Tribunal was advised by Ms. McKenzie on behalf of the native title party that the grantee party was willing to negotiate an agreement.  This was subsequently confirmed by the representative of the grantee party. Negotiations continued over the first half of this calendar year and as late as 24 July 2009 both the native title and grantee parties informed the Tribunal that they were still attempting to reach an accord. At various Status Conferences the parties were informed that this was not a “right to negotiate” process with a potentially open-ended time frame, and that the Tribunal was required to conduct an inquiry in a timely manner.

3. Finally at the 28 August 2009 conference the Tribunal was advised that there had been no progress in negotiations.  Ms. McKenzie advised that one of the persons comprising the Applicant had passed away and she had been unable to obtain instructions. Ms. McKenzie had also advised the Tribunal in relation to another matter involving the same claim group that the persons comprising the Applicant were in gridlock with no likelihood of agreements being able to be properly executed.  Further, although a section 66B meeting was proposed for 2 September 2009 to deal with this situation, Ms McKenzie was obviously not in a position to advise if such a meeting would either go ahead or, if it did, whether it would result in the impasse being resolved.

4. Ms Tongpao, on behalf of the grantee party, informed the Tribunal that irrespective of the disposition of the expedited procedure objection application, her client was willing to reach an accord with the native title party. In short, there was and is the prospect of a “side agreement’ being entered into once the problems confronting the Applicant are resolved.

5. In Western Australia v Ward (1996) 70 FCR 265 Lee J made the following observations about inquiries into expedited procedure objections (at 278):

   “The context of the Subdivision suggests that a determination whether ’the expedited procedure’ is attracted is to be made as speedily as possible and that it is not intended that the Tribunal conduct an inquiry in which detailed anthropological and sociological material or economic analysis is obtained. The general provisions of ss 139-149 of the Act instructing the Tribunal in respect of the conduct of inquiries must be read subject to the nature of the application in respect of which an inquiry is required under the Act. It is not the intention of the Act that in respect of the determination of whether an ‘act is an act attracting the expedited procedure’ that time that should be spent on negotiation, or on a hearing of a substantive question raised by an application made under s 35 of the Act, or that the costs that would be incurred in additional and unnecessary proceedings be wasted on what is intended to be a ‘screening’ procedure under ss 29(4) and 32 of the Act.” 

6. Section 148 empowers the Tribunal to dismiss an expedited procedure objection application at any stage of an inquiry if, inter alia, the Applicant fails within a reasonable time to proceed with the application - s. 148(b). A further ground is if the application has failed to comply with a Direction made by the Tribunal, but in accordance with the practice adopted in Queensland, Directions have not been made so as to maximize the opportunity for the parties to negotiate an agreement.

7. In this matter the Applicant has, through internal disputations, been unable to reach an accord with the grantee party. Further, the Applicant is not in a position to prosecute their objection application through to a formal inquiry. In short, the matter reached an impasse, and there is no material before the Tribunal to suggest that this state of affairs will definitely be resolved.

8. The principles guiding the Tribunal in determining whether to exercise it’s power to dismiss an expedited procedure objection application pursuant to section 148 are set out in Teelow v Page (2001) 166 FLR 266. I adopt those principles for the purpose of this matter. The Tribunal has previously determined that an avowed refusal by an objector to comply at any time with the directions of the Tribunal is in itself a sufficient basis for dismissal – Dixon v Northern Territory (2002) 169 FLR 103 at 107. A further basis for dismissal pursuant to s. 108(b) is where the objector is incapable of prosecuting the objection because of internal divisions. When the Tribunal is advised that a native title party is incapable of both reaching an accord with the grantee party (or parties) and likewise is incapable of prosecuting the objection through to a concluded inquiry, the Tribunal can, and sometimes should, exercise its discretion and dismiss the expedited procedure objection application forthwith. Such a course of action would be inappropriate where the parties inform the Tribunal that a consent determination will be sought in which case the government party will withdraw its assertion of the expedited procedure.

9. The discretion vested in the Tribunal by section 148 to dismiss expedited procedure objection applications is drafted broadly. Nonetheless the Tribunal exercises this discretion sparingly and only as a matter of last resort. It is recognised that the right to negotiate is a valuable right, perhaps the single most important right provided to native title claimants by the Act, and for that reason any objection by a native title party to the assertion of the expedited procedure must be dealt with carefully. It is also the case that the Tribunal has before it, at any time, multiple objections, often by the same claim group. The lodging of expedited procedure objection applications is primarily aimed at enabling the parties to reach an agreement, the terms of which supplement the rights and obligations contained in the standard native title protection conditions required by the State of Queensland. The State of Queensland, despite asserting the expedited procedure, has a policy of facilitating negotiations between native title and grantee parties. The State regularly supports adjournments to enable negotiations to commence and reach fruition. However, there is a point beyond which adjournments cannot be granted. The assertion of the expedited procedure by the State not only enlivens the jurisdiction of the Tribunal when an expedited procedure objection application is lodged, but also automatically starts an inquiry process which must be dealt with “speedily”. This was explained in Saltmere (Indjilandji Dithannoi)/Queensland/Savannah Resources Pty Ltd [2005] NNTTA 54 as follows at [10]:

   “The Tribunal is required to act promptly when considering expedited procedure objection inquiries – per Nicholson J Little v Western Australia [2001] FCA 1706 at [85]. The term ‘expedited procedure’ is self-explanatory, and the Parliament has put in place a process for low impact future acts designed to achieve an outcome within reasonable time frames.”

10. In this matter the native title party lodged an expedited procedure objection application on 17 November 2008. It has been negotiating with the grantee party since at least January 2009. There is no finalised agreement between the parties and no guarantee that any agreement can be reached due to difficulties within the Applicant. There is also no intention to prosecute this objection through to an inquiry hearing. In these circumstances the proper course of action is dismiss the expedited procedure objection application pursuant to section 148.  In doing so, the Tribunal has taken into account the willingness of the grantee party to negotiate a “side agreement” with the native title party in due course. In all likelihood the dismissal of this application will not disadvantage the native title party, but will ensure that the statutory scheme for speedy resolution of expedited procedure objection applications is given effect.

Decision

1. The expedited procedure objection application in relation to EPM 16929 is dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Deputy President