Janice Barnes & Ors (Wangan and Jagalingou People)/Queensland/ Echo Resources Limited

[2009] NNTTA 116

NATIONAL NATIVE TITLE TRIBUNAL

Janice Barnes & Ors (Wangan and Jagalingou People)/Queensland/ Echo Resources Limited, [2009] NNTTA 116 (29 September 2009)

Application No:        QO09/87

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Janice Barnes, Jessie Diver, Owen McEvoy, Deree King and Patrick Fisher on behalf of the Wangan and Jagalingou People   (native title party)

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The State of Queensland   (government party)

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Echo Resources Limited  (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Tribunal:                   John Sosso
Place:                         Brisbane
Date of dismissal:      4 September 2009
Date of reasons:        29 September 2009

Representatives:         

Native title party:       No appearance

Government party:     Ms Sara Newrick

Grantee party:           No appearance

Catchwords:             Native title – future act – proposed grant of exploration licence expedited procedure objection application – inability to finalise negotiations – springing direction - failure to comply with Directions – expedited procedure objection application dismissed.

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

Cases:Barnes & Ors (Wangan and Jagalingou People)/Queensland/D’Aguilar Gold Limited; Waratah Coal Pty Ltd; Hancock Prospecting Pty Ltd, [2009] NNTTA 97 (19 August 2009)

Dixon v Northern Territory (2002) 169 FLR 103

Teelow v Page (2001) 166 FLR 266

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

[1] On 21 December 2008, 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 Permit for Mineral (EPM 16520) to Echo Resources Limited (“the grantee party”). The notice specified 4 February 2009 as the notification day for the purpose of section 29(4)(a) and included a statement that it was considered that the grant attracted the expedited procedure.

[2] On 28 May 2009 Janice Barnes, Jessie Diver, Owen McEvoy, Deree King and Patrick Fisher on behalf of the Wangan and Jagalingou 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 17 June 2009, 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. It is the practice in Queensland for the Tribunal to convene a Preliminary Conference followed by Status Conferences, where each of the parties indicates whether they wish to negotiate a consensual outcome.  If the parties are actively engaging in negotiations, or at least taking the necessary steps to enable such negotiations to occur, the Tribunal will not make Directions for the holding of an inquiry.  Directions are only made when it is clear that one or more of the parties does not wish to negotiate or, for whatever reasons, negotiations have failed or stalled.  Accordingly in most instances, Directions are only made some time into the process.

3. In Barnes & Ors (Wangan & Jagalingou)/Queensland/D’Aguilar Gold Limited & Ors [2009] NNTTA 97 (19 August 2009) I dealt with other expedited procedure objection applications made by the native title party which were the subject of springing directions. In that matter, as in the current matter, the native title party was incapable of either reaching an accord with the grantee party or progressing the expedited procedure objection due to internal disputes within the claim group. The background to this situation is explained in the above determination at [5] – [11].

4. In this matter neither the native title or grantee parties made an appearance before the Tribunal at the Status Conference convened on 28 August 2009.   Likewise, neither party appeared before the Tribunal at the Preliminary Conference of 7 July 2009.  At the 28 August Status Conference the government party advised that its officers had been unable to contact the grantee party and that it was expected that the Tribunal would make directions consistent with those made in Barnes & Ors (Wangan & Jagalingou)/Queensland/D’Aguilar Gold Limited & Ors [2009] NNTTA 97. The Tribunal accepted the submissions of the government party. It was unfortunately clear that the native title party did not intend to, or could not, prosecute its objection, and it was also unclear if the grantee party wished to reach an accord with the native title party. In these circumstances requiring the government party to comply with Directions to produce documents when it was highly unlikely that any other party would comply would not only be futile but result in an unnecessary waste of the resources of the government party. Nonetheless I determined to give the native title party a week to reconsider its position in the event, albeit unlikely, that the problems which hitherto had prevented the prosecution of the objection, could be successfully addressed.

5. Directions were made on 28 August 2009 requiring the native title party provide a statement of contentions and related documents to the Tribunal and each other party by close of business on 4 September 2009. Direction 1A then provided that if the native title party had not complied by close of business on 4 September 2009 the Tribunal, pursuant to s.148(b) of the Native Title Act 1993, would dismiss forthwith the expedited procedure objection application.

6. The principles governing the making of “springing” or  “guillotine” Directions was explained in Dixon v Northern Territory (2002) 169 FLR 103. The ability of the Tribunal to dismiss an expedited procedure objection application at any stage of an inquiry, is focused in section 148 on either the Tribunal’s lack of power to make a determination (s.148(a)) or the failure of the applicant to either proceed with the application or comply with a direction (s.148(b)). The principles guiding the Tribunal when determining whether to dismiss an expedited procedure objection application were explained in Teelow v Page (2001) 166 FLR 266. I adopt those principles for the purpose of this decision. In these matters the Applicant has been unable to reach agreements with the grantee party due to internal claim group divisions. Where the Tribunal is informed that a claim group is divided and that the Applicant is either incapable, unwilling or hamstrung in reaching an accord with a grantee party, and is also not willing or capable of prosecuting the expedited procedure objection application, the Tribunal is empowered either to dismiss the application immediately or make springing directions. For the reasons outlined above springing directions were made in this matter.

7. The springing Direction, having required the native title party to submit evidence by close of business on 4 September 2009, were activated on that date by the failure of the native title party to comply.

Decision

1. The expedited procedure objection application in relation to EPM 16520 is dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth).

John Sosso

Deputy President