James Taylor & Ors (Kalkadoon People)/Queensland/Matrix Metals Limited - [2004] NNTTA 89

NATIONAL NATIVE TITLE TRIBUNAL

James Taylor & Ors (Kalkadoon People)/Queensland/Matrix Metals Limited, [2004] NNTTA 89 (21 September 2004)

Applications No: QO 04/67 & QO04/76

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

James Taylor, Ethel Page, Thelma Sullivan, Richard Percy, Connie Craigie, Pat Kyle, Sonny Condren on behalf of the Kalkadoon People
(native title party)

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The State of Queensland (government party)

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Matrix Metals Limited (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:        John Sosso
Place:              Brisbane
Date:               21 September 2004

Catchwords: Native Title – future act – proposed grant of exploration permits - mineral – expedited procedure objection applications – government party withdraws assertion of the expedited procedure – objection applications dismissed.

Legislation:Native Title Act 1993 (Cth) ss 28, 29, 31, 32, 41A, 109, 148(a)

Hearing Date: No formal hearing

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

[1] On 5 May 2004, the government party gave notice under section 29 of the Native Title Act 1993 (Cth) of its intention to grant Exploration Permits for Mineral (“EPM”) 14163 and 14148 (“the proposed tenements”) to Matrix Metals Limited (“the grantee party”) and included in the notice a statement that it considered that the grants attracted the expedited procedure.

[2] On 3 September 2004, James Taylor, Ethel Page, Thelma Sullivan, Richard Percy, Connie Craigie, Pat Kyle, and Sonny Condren, jointly the registered native title claimant in the Kalkadoon People native title determination application (“the native title party”), lodged with the Tribunal an expedited procedure objection application, pursuant to section 32(3).

On 10 September 2004 I considered each of the expedited procedure objection applications lodged by the native title party against each of the conditions set out in section 76 and regulation 4 of the Native Title (Tribunal) Regulations 1993, and accepted each of the applications pursuant to section 77.

By letter dated 14 September 2004, the government party formally notified the Tribunal that a section 31 agreement had been entered into by each of the government, grantee and native title parties. Clause 7.1 of the agreement provides:
“The Government party hereby withdraws its statement that it considers the grant of the Exploration Permit is an act attracting the Expedited Procedure. The parties agree that the commencement of this Deed, shall constitute written notice to the parties and the Arbitral Body of that withdrawal under section 32(7) of the NTA. Furthermore, the Government Party authorizes the Legal Counsel for the Department of Natural Resources Mines and Energy to prepare, complete, execute and lodge any and all documents to give effect to the intent of this clause. The Government Party shall procure Legal Counsel for the Department of Natural Resources Mines and Energy to provide a copy of all such documents to the other parties.”
Whilst the government party has withdrawn its statement that the grant of the proposed tenements are not acts attracting the expedited procedure, the native title party has not withdrawn, pursuant to section 32(6), its expedited procedure objection applications. Technically, therefore, the Tribunal still has before it applications that need to be dealt with.
Before dealing with those applications, there are some procedural issues that should be dealt with. The government party asserts in clause 7.1 of the section 31 agreement that this Deed constitutes written notice to the Tribunal under section 32(7). Section 32(7) provides as follows:
“(7) At any time before the arbitral body makes a determination under subsection (4), the Government Party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so subsection 31(1) applies as if the notice did not include such a statement.”
The policy underpinning subsection 32(7) is clear. If at any time before the Tribunal makes a determination as to whether the future act attracts the expedited procedure the government party withdraws its assertion, then the normal negotiation in good faith procedure comes into play. The Tribunal, in such circumstances, has no legal basis for making a determination under section 32(4) and the policy preference for the resolution of future acts by negotiation, as distinct from arbitration, applies.
In these matters, the government, grantee and native title parties have executed an agreement which not only provides for the withdrawal of the government party’s expedited procedure assertions, but also sets out that the parties have negotiated in good faith and that the Deed is an agreement for the purposes of section 28(1)(f) and section 31(1)(b).
The Deed asserts in clause 7.1 that it constitutes the written notice required by section 32(7). Section 41A(1)(a) requires the negotiation parties to give to the Tribunal a copy of any section 31(1)(b) agreement. In this instance, as is the usual practice of the government party, a copy of the agreement was posted to the Senior Case Manager under the cover of a letter sent by a Legal Officer in the Department of Natural Resources, Mines and Energy.
The Act does not mandate any particular form by which notice must be given other than the requirement mentioned in section 41A(1)(a). Regard should be had to the manner in which Parliament has determined the Tribunal should carry out its statutory functions. This can be gleaned from section 109 which makes it very clear that the Tribunal must carry out its functions in a “fair, just, economical, informal and prompt way” (s109(1)), and further, that the Tribunal in carrying out its functions “is not bound by technicalities, legal forms or rules of evidence” (s109(3)).
Accordingly, section 32(7) has to be read in a common sense manner. The obligation imposed on the government party by this subsection is twofold: to notify the negotiation parties in writing that it is withdrawing its statement that it considers a relevant future act attracts the expedited procedure and, impliedly, to notify the Tribunal before a determination is made under section 32(4). Subject to the limitation that the notification to the negotiation parties must be in writing, the mode of notification is a matter entirely for the government party. In this instance, the government party has sufficiently satisfied its obligation to notify the Tribunal by forwarding a letter with the section 31 agreement annexed thereto. No doubt there would be other means of notifying the Tribunal in appropriate circumstances, including the forwarding of an email to the appropriate Tribunal officer.
The Tribunal is confronted in the Queensland context with an increasing number of expedited procedure objection applications that are made with the object of ensuring that ancillary agreements entered into with mining and exploration companies can be given effect to and that the Native Title Protection Conditions will not be imposed. This goal is achieved by native title parties objecting to the assertion of the expedited procedure by the Crown and then the execution of a State Deed (s.31 agreement) which provides for the State withdrawing its assertion of the expedited procedure, the parties confirming that they have negotiated in good faith and the non-application of the Native Title Protection Conditions.
The matters before the Tribunal ostensibly fall within this category. There is nothing legally inappropriate with this approach, but it does trigger the collateral situation of the Tribunal being left with an expedited procedure objection application which has not been withdrawn under section 32(6) but which no longer achieves any objective.
In circumstances where there is an extant expedited procedure objection application but the State has withdrawn its statement that the act attracts the expedited procedure and the negotiating parties have executed a section 31 agreement, the proper course of action is for the Tribunal to dismiss the application pursuant to section 148(a). Section 148(a) empowers the Tribunal to dismiss an application at any stage of an inquiry if it “is satisfied that it is not entitled to deal with the application.”
In these matters there is no scope for the Tribunal making a determination under section 32(4). The negotiating parties have reached an agreement and the Tribunal has been notified of this fact. The Tribunal has been deprived of its jurisdiction as there is no longer a live issue requiring the exercise of its determination power. In these circumstances the Tribunal is no longer entitled to deal with the application and must dismiss the expedited procedure objection applications.

Decision

There is no longer any proposal from the government party to apply the expedited procedure to EPM 14163 and 14148 and accordingly the expedited procedure objection applications are dismissed pursuant to section 148(a) of the Native Title Act1993 (Cth).

John Sosso
Member