Ruby Saltmere (Indjilandji/Dithannoi)/Queensland/Savannah Resources Pty Ltd

[2005] NNTTA 54

NATIONAL NATIVE TITLE TRIBUNAL

Ruby Saltmere (Indjilandji/Dithannoi)/Queensland/Savannah Resources Pty Ltd, [2005] NNTTA 54 (5 August 2005)

Application No:          QO 04/94

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Ruby Saltmere on behalf of the Indjilandji/Dithannoi People  (native title party)

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The State of Queensland   (government party)

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Savannah Resources Pty Ltd  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:        John Sosso
Place:              Brisbane
Date:               5 August 2005

Catchwords:   Native title – future act – proposed grant of exploration licence expedited procedure application – failure to proceed within a reasonable time - objection application dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 31, 32, 66B, 148(b)

Hearing Dates:                     17 December 2004, 18 February 2005, 1 April 2005, 8 April 2005, 15 April 2005, 6 May 2005, 10 June 2005, 1 July 2005, 22 July 2005, 5 August 2005.

Representatives -

Native title party:                Mr Greg Carter, Ebsworth & Ebsworth Lawyers

Government party:             Miss Leanne O’Neill, Department of Natural Resources and Mines

Grantee party:  Mr Peter Hwang, Minter Ellison Lawyers

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

[1] On 14 July 2004, the State of Queensland (“the government party”) gave notice under section 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant Exploration Permit (EPM) 14384 (the proposed tenement) to Savannah Resources Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

[2] On 15 November 2004, Ruby Saltmere, on behalf of the Indjilandji/Dithannoi People (“the native title party”), lodged with the Tribunal an expedited procedure objection application, pursuant to section 32(3).

1. The Indjilandji/Dithannoi native title determination application (QUD6031/99) was filed with the Federal Court on 6 November 2002 and entered on the Register of native title claims on 16 July 2003.

1. On 16 November 2004 Deputy President Sumner, as delegate of the President, appointed me as the Member to constitute the Tribunal for the purpose of this expedited procedure objection inquiry.

1. On 24 November 2004 I considered the expedited procedure objection application lodged by the native title party and accepted it pursuant to section 77.

1. This matter was first listed for a Preliminary Conference on 17 December 2004, and subsequently listed for Status Conferences on 18 February, 1 April, 8 April, 15 April, 6 May, 10 June, 1 July, 22 July and 5 August 2005. At the Status Conference of 15 April 2005 I issued Directions, which were subsequently amended on four occasions. On each occasion the time for compliance was altered to allow the parties further time to negotiate an agreement.

2. The proposed tenement overlaps two registered native title determination applications. Apart from the Indjilandji/Dithannoi application, the proposed tenement also overlaps the Kalkadoon native title determination application (QC99/32B). Only the Indjilandji/Dithannoi People lodged an expedited procedure objection application. However, in order that an agreement can be reached with the government party pursuant to section 31(1)(b), both native title claim groups are required to execute the relevant State Deed.

1. It has become clear that there are divisions within the Kalkadoon native title claim group, and I was informed that proceedings under section 66B will be filed with the Federal Court in the near future. In the meantime, the Kalkadoon People are not capable of executing a State Deed due to divisions within the persons who collectively constitute the Applicant.

2. Accordingly, an impasse has been reached such that, despite the extensive negotiations that have occurred since 2004, there are no realistic prospects of an agreement being reached with the Kalkadoon People in the near future.

3. The Tribunal is required to act promptly when conducting expedited procedure objection inquiries – per Nicholson J Little v Western Australia [2001] FCA 1706 at [85]. The term “expedited procedure” is self-explanatory, and the Parliament has put in place a process for low impact future acts designed to achieve an outcome within reasonable time frames.

4. The legal representative for the Kalkadoon People who appeared at the 5 August Status Conference was not able to give me any particular time frame for the resolution of the issues affecting his client. The jurisprudence that has developed around section 66B is extensive and it would not be appropriate or sensible for the Tribunal to engage in conjecture about the likelihood of any application under that section being dealt with in a particular way by the Federal Court.

5. In addition, I sought information from Mr Carter, the legal representative of the native title party, of the likelihood of his client complying with the Directions I made. He indicated that his client would not wish to proceed to inquiry and would withdraw its objection in due course.

6. The Tribunal has previously determined that if a native title party indicates that it will not be complying with Directions that have been issued, there is proper scope for the Tribunal dismissing the application pursuant to the first limb of section 148(b). The test to be applied is whether, at the time the Tribunal is considering dismissing the expedited procedure objection application, the native title party has demonstrated clearly and unconditionally that it will not be proceeding with its application – Noy v Northern Territory (2003) 174 FLR 366.

7. In this matter the native title party has clearly and unequivocally stated that it does not wish this matter to proceed to inquiry and will not be complying with any Directions made. In the circumstances, it is appropriate that this matter be dealt with immediately under section 148(b) without the parties being subjected to further delays and costs. I also take into account that this is an expedited procedure objection inquiry and that the Tribunal is required to make a determination “as speedily as possible” Western Australia v Ward (1996) 70 FCR 265 at 278 per Lee J.

Decision

1. The native title party has failed within a reasonable time to proceed with the application, and accordingly the expedited procedure objection application in relation to the grant of EPM 14384 to Savannah Resources Pty Ltd is dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Member