James Watts Taylor & Ors (Kalkadoon People)/ Queensland/Matrix Metals Limited; Exco Resources Nl; Terence John Byrt, Judy-Anne Galway & Robert William Kirby

[2006] NNTTA 85

NATIONAL NATIVE TITLE TRIBUNAL

James Watts Taylor & Ors (Kalkadoon People)/ Queensland/Matrix Metals Limited; Exco Resources NL; Terence John Byrt, Judy-Anne Galway & Robert William Kirby; [2006] NNTTA 85 (10 July 2006)

Applications No:       QO06/9, QO06/62 & QO05/231

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of inquiries into expedited procedure objection applications

James Watts Taylor and Ors (Kalkadoon People) (native title party)

- and -

The State of Queensland   (government party)

- and -

Matrix Metals Limited; Exco Resources NL and
Terence John Byrt, Judy-Anne Galway &
Robert William Kirby   (grantee parties)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Tribunal:        John Sosso
Place:              Brisbane
Date:               10 July 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:Dunrobin/Queensland/Australia Oriental Minerals NL [2006] NNTTA 81 (28 June 2006)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

[1] On the dates specified in the attached schedule, 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 15005, 15209 and 14753 (the proposed tenements) to the grantee parties as listed, and included in the notices a statement that it considered that the grants attracted the expedited procedure.

[2] On the dates specified in the attached schedule, James Watts Taylor & Others on behalf of the Kalkadoon People native title determination application - QUD6031/99 – (the native title party), lodged with the National Native Title Tribunal (the Tribunal), expedited procedure objection applications pursuant to section 32(3).

1. On the dates specified in the attached 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.

2. On 30 June 2006 the Federal Court ordered that, pursuant to a self executing Order of 21 March 2006 which had taken effect, the Kalkadoon People native title determination application stood dismissed.

3. 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.”

4. 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 – see Dunrobin/Queensland/Australia Oriental Minerals NL [2006] NNTTA 81 at [6]-[7].

5. 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.

6. 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 Kalkadoon People (QO06/9, QO06/62 and QO05/231) are dismissed pursuant to section 148(a) of the Native Title Act 1993 (Cth).

John Sosso
Member

SCHEDULE  –  DETERMINATION [2006] NNTTA 85 (10 July 2006)

Tenement EPM	Government Party Notification	Objection Application Lodged	Objection Application No.	Member Appointed	Grantee Party/ies	Native Title Party & Claimant Application No.
15005	12/10/05	13/02/06	QO06/9	16/02/06	Matrix Metals Limited	James Watts Taylor, Ethel Page, Thelma Sullivan, Richard Percy, Connie Craigie, Pay Kyle & Sonny Condren on behalf of the Kalkadoon People QC99/32
15209	22/02/06	22/06/06	QO06/62	23/06/06	Exco Resources NL	James Watts Taylor, Ethel Page, Thelma Sullivan, Richard Percy, Connie Craigie, Pay Kyle & Sonny Condren on behalf of the Kalkadoon People QC99/32
14753	20/07/05	21/11/05	QO05/231	22/11/05	Terence John Byrt, Judy-Anne Galway and Robert William Kirby	James Watts Taylor, Ethel Page, Thelma Sullivan, Richard Percy, Connie Craigie, Pay Kyle & Sonny Condren on behalf of the Kalkadoon People QC99/32