Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Rio Tinto Exploration Pty Ltd and Another

[2017] NNTTA 74

NATIONAL NATIVE TITLE TRIBUNAL

Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Rio Tinto Exploration Pty Ltd and Another [2017] NNTTA 74 (28 November 2017)

Application No: QO2017/0020, QO2017/0021

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

Michael Ross & Others on behalf of the Cape York United Number 1 Claim (QC2014/008)

(native title party)

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Rio Tinto Exploration Pty Ltd

(grantee party)

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State of Queensland

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Mr JR McNamara, Member
Place:	Brisbane
Date:	28 November 2017

Catchwords:	Native title – future acts – proposed grant of exploration permits – expedited procedure objection applications – failure to comply with directions – objection applications dismissed
Legislation:	Native Title Act1993 (Cth) ss 29, 148(b)
Cases:	Teelow v Page (2001) 166 FLR 266; [2001] NNTTA 107 (‘Teelow v Page’)
Representative of the native title party:	Mr Daniel Twikler, Cape York Land Council

Representative of the grantee party: Mr Jon Healy, Rio Tinto

Representative of the Government party: Mr Chris Rawlings, Department of Natural Resources and Mines

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 28 September 2016, the State of Queensland issued notices under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) stating its intention to grant exploration permits EPM26308 and EPM26309 to Rio Tinto Exploration Pty Ltd. Each notice included a statement that the State considers the grant to be ‘an act attracting the expedited procedure.’ An act attracting the expedited procedure is one that can be validly done without negotiating with the registered native title holders or claimants.

2. If a s 29 notice includes an expedited procedure statement, any registered native title claimants or registered native title bodies corporate for the area can object to the inclusion of the statement. If the Tribunal determines that the proposed act is an act attracting the expedited procedure, then it can be validly done without going through the normal negotiation procedure mandated by the Act. If the Tribunal determines that the expedited procedure does not apply, then the grantee and the State must negotiate in good faith with all registered native title claimants and registered native title bodies corporate for the area.

3. The proposed exploration permits are located within the external boundaries of the Cape York United Number 1 Claim, which was entered on the Register of Native Title Claims on 6 February 2015. On 25 January 2017, the persons named on the register as the applicant for the claim (‘the Cape York claimants’) lodged an application with the Tribunal objecting to the inclusion of the expedited procedure statement. Following the lodgement of the objections, the President of the Tribunal, Raelene Webb QC, appointed me to constitute the Tribunal for the purpose of hearing the objections.

Should the objections be dismissed?

1. On 22 September 2017, I made directions about the conduct of an inquiry into the objections. Those directions required, among other things, the Cape York claimants to provide a statement of contentions and other documents relevant to the inquiry on or before 3 November 2017.

2. On 3 November 2017, the Cape York Land Council wrote to the Tribunal and the other parties on behalf of the Cape York claimants advising they had ‘not been able to receive further instructions in this matter and will not be in a position to provide any further information necessary to support’ the objections. I note that, to date, the Cape York claimants have yet to provide any documents in support of the objections.

3. On 6 November, the Tribunal wrote to the Cape York Land Council and the other parties, inviting the Cape York claimants to withdraw the objections or I would consider dismissing them in accordance with s 148(b) of the Act. Section 148(b) provides that the Tribunal may dismiss an application, at any stage of an inquiry, if the applicant fails within a reasonable time to proceed with the application or comply with a direction by the Tribunal.

4. The Cape York Land Council replied in an email later the same day stating they would seek further advice and respond to the Tribunal. On 24 November, the Cape York Land Council wrote to the Tribunal again to confirm they had not been able to receive further instructions and were not be in a position to provide any further information in support of the objections.

5. In considering whether to dismiss the objections, I have had regard to the principles outlined by the Tribunal in Teelow v Page at [13]. In particular, I note the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.

6. The Cape York claimants have had sufficient opportunity to comply with directions set by the Tribunal. The claimants have not asked that I extend those directions and there is no indication they intend to proceed with the objections. In the circumstances, it would be unfair to prejudice the other parties with any further delay.

7. On this basis, I have decided to dismiss the objections.

Decision

1. Expedited procedure objection applications QO2017/0020 and QO2017/0021 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Mr JR McNamara
Member
28 November 2017