Pearl Joyce Connelly (Mitakoodi & Mayi People & Mitakoodi & Mayi #3)/ Queensland/ Exco Resources Limited

[2009] NNTTA 102

NATIONAL NATIVE TITLE TRIBUNAL

Pearl Joyce Connelly (Mitakoodi & Mayi People & Mitakoodi & Mayi #3)/ Queensland/ Exco Resources  Limited, [2009] NNTTA  102 (2 September 2009)

Application No:        QO08/167 & QO09/51

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Pearl Joyce Connelly on behalf of the Mitakoodi & Mayi People #3 and Mitakoodi & Mayi People   (native title parties)

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The State of Queensland   (government party)

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Exco Resources Limited  (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Tribunal:                   John Sosso
Place:                         Brisbane
Dates of dismissal:    28 August 2009
Date of reasons:        2 September 2009

Representatives:         

Native title party:       Mr Bill Grenacs, Isa Lawyers.

Government party:     Ms Sara Newrick, State of Queensland.

Grantee parties:         Ms Susan Persichitti, Tenement Manager, Exco Resources Limited.

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

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

Cases:Teelow v Page (2001) 166 FLR 266

Dixon v Northern Territory (2002) 169 FLR 103

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

[1] On the dates specified in the Schedule, 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 Permits for Mineral (EPM) to Exco Resources Limited (“the grantee party”), and included in the notices a statement that it considered that the grants attracted the expedited procedure.

[2] On the dates specified in the Schedule, Pearl Joyce Connelly on behalf of the Mitakoodi & Mayi People #3 and Mitakoodi & Mayi People (“the native title parties”) lodged with the National Native Title Tribunal (“the Tribunal”), expedited procedure objection applications pursuant to s. 32(3).

1. On the dates specified in the 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. 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 each matter at the outset the Tribunal was informed that the grantee party was willing to negotiate an outcome with the native title parties.  The Tribunal was subsequently informed that there were meetings of the Mitakoodi and Mayi People on 19 April 2009 at which authorisation was given to bring applications pursuant to section 66B to replace Mrs. Connelly in all four Mitakoodi and Mayi native title determination applications.  Accordingly, section 66B applications were filed on 2 June 2009 to replace Mrs. Connelly as the Applicant for the Mitakoodi and Mayi native title determination applications. Queensland South Native Title Services, the then legal representative of the Applicant, subsequently withdrew and was replaced by Mr. Grenacs. The section 66B applications were listed for hearing by Justice Dowsett on 9 June 2009, but on 11 August 2009 leave was granted for the withdrawal of the section 66B applications.  By the time of the final Status Conference on 28 August 2009 Mrs. Connelly remained the Applicant, but there was ongoing doubt concerning the future composition of the Applicant and the future progress of the native title determination applications.

4. Importantly the Tribunal was advised by the representative of the grantee party on 20 August 2009 that no ancillary agreements had been executed, that no progress had been made in advancing matters since the last Status Conference and that the grantee party now sought directions that the expedited procedure objection applications be dismissed.     

5. At the status conference of 28 August 2009 I asked Mr. Grenacs in those circumstances if the native title party would seek to have the matters set down for inquiry or if he could obtain instructions to withdraw the expedited procedure objection applications. Mr. Grenacs whilst not wanting to divert the resources of the Applicant in prosecuting an inquiry was also not able to give an undertaking that instructions could be obtained for withdrawing the applications. In the circumstances I then sought his submissions on whether “springing” directions should be made providing him until close of business that day to either obtain instructions to withdraw the applications, determine to prosecute the objections, or if neither was achieved, then for the expedited procedure objection applications to stand dismissed. Mr. Grenacs indicated that this proposed course of action was the most suitable in the circumstances.  

6. Directions were made for both matters 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 28 August 2009. Direction 1A then provided that if the relevant native title party had not complied by close of business on 28 August 2009 the Tribunal, pursuant to s.148(b) of the Native Title Act 1993, would dismiss forthwith each expedited procedure objection application.

7. 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.

8. The springing Directions, having required the native title parties to submit evidence by close of business on 28 August 2009, were activated on that date by the failure of the native title parties to comply.

Decision

1. The expedited procedure objection applications specified in the attached Schedule are dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Deputy President

SCHEDULE  –  DETERMINATION [2009] NNTTA 102 (2 September 2009)

Tenement	Government Party Notification	Objection Application Lodged	Objection Application No.	Member Appointed	Grantee Party	Native Title Party & Application No.	Date of dismissal
EPM 13709	6/08/08	2/12/08	QO08/167	19/12/08	Exco Resources Limited	Pearl Joyce Connelly on behalf of the Mitakoodi & Mayi  People #3 QC03/4	28/08/09
EPM 17338	12/11/08	10/03/09	QO09/51	27/03/09	Exco Resources Limited	Pearl Joyce Connelly on behalf of the Mitakoodi & Mayi  People QC96/101	28/08/09