Pearl Joyce Connelly (Mitakoodi & Mayi People); Sonny Condren & Ors (Kalkadoon People #4)/Queensland/Metex Resources Ltd; Reefway Pty Ltd

[2007] NNTTA 35

NATIONAL NATIVE TITLE TRIBUNAL

Pearl Joyce Connelly (Mitakoodi & Mayi People); Sonny Condren & Ors (Kalkadoon People #4)/Queensland/Metex Resources Ltd; Reefway Pty Ltd    [2007] NNTTA 35  (1 May 2007)

Application Nos:       QO06/101, QO06/118,  QO06/122,  QO06/123,  QO06/124, QO06/125,   QO06/126 & QO06/127. 

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of inquiries into expedited procedure objection applications

Parties to the applications are listed in the attached schedule.

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:        John Sosso
Place:              Brisbane
Date:               1 May 2007

Hearing dates:  2 March, 27 April 2007

Catchwords:   Native title – future acts – proposed grant of exploration permits - expedited procedure applications – applications for exploration licences withdrawn - objection applications dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 31, 32, 147, 148(a), 149

Mineral Resources Act1989 s 159

Cases:           Dixon v Northern Territory (2002) 169 FLR 103

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

[1] On the dates specified in the attached schedule, the Queensland Department of Natural Resources and Water (“government party”) gave notice under section 29 of the Native Title Act 1993 (“the Act”) of its intention to grant Exploration Permits for Mineral (EPM) 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, the native title parties lodged with the National Native Title Tribunal (“the Tribunal”), expedited procedure objection applications pursuant to section 32(3) of the Act.

[3]         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.

[4] On 26 April 2007 the Tribunal was advised that, following a request from the Metex Resources Limited (“Metex”) and pursuant to subsection 159(1) of the Mineral Resources Act1989, the applications for the grant of the tenements as listed in the attached schedule, had been abandoned. Pursuant to subsection 159(2) of the Mineral Resources Act 1989, the abandonment takes effect on “the day next following its receipt by the chief executive.” As the government party received the notice of abandonment on 23 April 2007, it took effect as from 24 April 2007.

[5] The government party, whilst informing the Tribunal of the abandonment of the applications for the grant of the tenements by Metex, did not formally withdraw the section 29 notices. In the absence of the government party withdrawing the section 29 notices I listed each of these matters for a conference in Brisbane on 27 April 2007.

[6] The government party was of the view that once the Tribunal was notified of the abandonment of the applications for the grant of the tenements by Metex that it no longer had jurisdiction to deal with the expedited procedure objection applications, and that the correct approach was for the Tribunal to formally dismiss the applications pursuant to section 148. Certainly, once a grantee party determines to abandon a tenement application there is no basis for the Tribunal proceeding with an inquiry as there will be no future act. However, as a matter of form the correct approach is for the government party to formally withdraw the instrument that activated the process, namely the notice of the future act under section 29.

[7] In the absence of the government party withdrawing the section 29 notices, I determined that there was, as a matter of procedure, two approaches potentially open to the Tribunal. The first was, to unilaterally and without delay, dismiss the various expedited procedure objection applications under section 148(a). This approach is legally open as once the Tribunal is put on notice that the proposed future act which activated the process is not proceeding, there is no basis upon which an inquiry can proceed. The second was to convene a Conference to formally seek the submissions of the parties to dismissing the applications under section 148(a) before making the necessary directions. This approach was adopted as a matter of convenience and is the preferable approach as it ensures that all parties (in particular, the native title party) are put on notice of the abandonment of the application for the grant of the tenement and are in a position to make any submissions they consider appropriate. There may be circumstances when a government party does not formally withdraw a section 29 notice where convenience favours the first approach, but this was not the case in this instance.

[8] As none of the parties objected to the Tribunal dismissing the expedited procedure objection applications pursuant to section 148(a), the Tribunal directs accordingly.

[9]         Expedited procedure objection application QO06/101 was also listed for the conference on 27 April 2007. The objector in this application is the Kalkadoon People #4 (QUD 579/05) and the grantee party is Reefway Pty Ltd. During the conference, the legal representative of the Kalkadoon People #4 informed the Tribunal that their client did not wish to proceed with their objection and would consent to the application being dismissed.

[10] The Tribunal can dismiss an expedited procedure objection application if the objector makes a written request – section 149. The Tribunal can also dismiss an application at any stage of an inquiry if it is satisfied that it is not entitled to deal with the application – section 148(a). Further, the Tribunal may dismiss an application at any stage of an inquiry if it satisfied that the application is frivolous or vexatious – section 147. An application can be dealt with under section 147 if the Tribunal is informed that the native title party does not intend to proceed with the application and will not be in a position to comply with any directions made – Dixon v Northern Territory (2002) 169 FLR 103 at [14].

[11] In this matter the Tribunal was satisfied on receipt of oral advice of the native title party’s intention to abandon its objection application that it was no longer entitled to deal with the application and that the correct approach was to dismiss the application pursuant to section 148(a).

Decision

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

John Sosso
Deputy President

SCHEDULE  –  DETERMINATION [2007] NNTTA 35  (1 May 2007)

Tenement EPM	Government Party Notification	Objection Application Lodged	Objection Application No.	Member Appointed	Grantee Party/ies	Native Title Party & Claimant Application No.	Advice of Withdrawal or Discontinuance
15321	14/06/06	16/10/06	QO06/101	16/10/06	Reefway Pty Ltd	Mr Sonny Condren, Mr Johnny Frogg, Mr William Doyle, Ms Noelene Dempsey, Ms Ilona Parter, Ms Hazel Munro, Ms Sue Samardin Jr, Ms Pat Kyle, Ms Connie Craigie, Mr Doug Bruce on behalf of the Kalkadoon People #4 QC05/12	27/04/07
15495	6/09/06	21/12/06	QO06/118	2/01/07	Metex Resources Limited	Pearl Joyce Connelly on behalf of the Mitakoodi & Mayi People QC96/101	26/04/07
15500	6/09/06	21/12/06	QO06/122	2/01/07	Metex Resources Limited	Pearl Joyce Connelly on behalf of the Mitakoodi & Mayi People QC96/101	26/04/07
15501	6/09/06	21/12/06	QO06/123	2/01/07	Metex Resources Limited	Pearl Joyce Connelly on behalf of the Mitakoodi & Mayi People QC96/101	26/04/07
15502	6/09/06	21/12/06	QO06/124	2/01/07	Metex Resources Limited	Pearl Joyce Connelly on behalf of the Mitakoodi & Mayi People QC96/101	26/04/07
15503	6/09/06	21/12/06	QO06/125	2/01/07	Metex Resources Limited	Pearl Joyce Connelly on behalf of the Mitakoodi & Mayi People QC96/101	26/04/07
15504	6/09/06	21/12/06	QO06/126	2/01/07	Metex Resources Limited	Pearl Joyce Connelly on behalf of the Mitakoodi & Mayi People QC96/101	26/04/07
15508	6/09/06	21/12/06	QO06/127	2/01/07	Metex Resources Limited	Pearl Joyce Connelly on behalf of the Mitakoodi & Mayi People QC96/101	26/04/07