Jessie Diver & Others on behalf of the Wangan and Jagalingou People/State of Queensland/TPL Corporation Ltd

[2012] NNTTA 97

NATIONAL NATIVE TITLE TRIBUNAL

Jessie Diver & Others on behalf of the Wangan and Jagalingou People/State of Queensland/TPL Corporation Ltd, [2012] NNTTA 97 (4 September 2012)

Application No:                    QO12/31

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Jessie Diver & Others on behalf of the Wangan and Jagalingou People (QC04/6)

(native title party)

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State of Queensland  (government party)

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TPL Corporation Ltd   (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  Graeme Neate
Place:  Brisbane
Date of decision:             4 September 2012
Date of reasons:              4 September 2012

Catchwords:  Native title – future act - proposed grant of exploration permit – expedited procedure objection application – tenement abandoned – no jurisdiction to proceed – expedited procedure objection application dismissed

Legislation:Native Title Act 1993 (Cth) ss 29, 32, 75, 148(a)

Mineral Resources Act 1989 (Qld) s 159

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

1. On 11 January 2012, 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 Coal EPC 2333 to TPL Corporation Ltd, and included in the notice a statement that it considered that the grant attracted the expedited procedure. Pursuant to s 29(4) of the Act, 1 February 2012 was specified as the notification day.

2. The Wangan and Jagalingou People’s claim for a determination of native title was accepted for registration on 5 July 2004, and has been a registered native title claim from that date. The proposed permit overlaps the area claimed by the Wangan and Jagalingou People by 90.68 per cent. Accordingly, the registered native title claimant is a “native title party” within the meaning of s 30(1) of the Act.

3. On 28 May 2012, the native title party lodged with the National Native Title Tribunal (“Tribunal”), an expedited procedure objection application pursuant to s 32(3) and s 75 of the Act in relation to EPC 2333.

4. A status conference was convened by the Tribunal on 29 June 2012. At this conference Deputy President Sosso inquired whether the parties intended to negotiate an agreement or proceed to inquiry. The grantee party’s representative informed the Tribunal that the parties had reached agreement in principle. Both parties’ representatives reported that they expected the agreement to have been executed by 31 August 2012. DP Sosso adjourned the matter, to be heard at a further status conference on 31 August 2012.

5. On 30 August 2012, by way of correspondence of the same date, the Government party advised the Tribunal that the application for the proposed tenement had been abandoned by the grantee party. The Government party provided an Exploration Permit Public Enquiry Report which confirmed that the tenement application for EPC 2333 had been abandoned.

6. The matter was removed from the list for the status conference scheduled for 31 August 2012 and the parties advised by email on 30 August 2012.

1. So far as is relevant, s 159 of the Mineral Resources Act 1989 (Qld) provides:

   “(1) The applicant for an exploration permit may, at any time before the grant of the exploration permit, by notice in writing to the chief executive abandon the application in relation to all or part of the land to which it relates.

   (2) The abandonment of an application for the grant of an exploration permit shall take effect on the day next following its receipt by the chief executive.”

2. In accordance with s 159(2) of the Mineral Resources Act 1989 (Qld), the abandonment of the proposed tenement took effect on 27 August 2012.

3. Section 148(a) of the Act provides

   “The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

   (a)   the Tribunal is satisfied that it is not entitled to deal with the application;”

4. I am satisfied that the Tribunal is no longer entitled to deal with the expedited procedure objection application. As there is no longer a future act, the Tribunal no longer has jurisdiction to proceed to conduct an inquiry.

Decision

1. The expedited procedure objection application QO12/31 in relation to EPC 2333 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Graeme Neate
President