Russell Tatow & Ors (Iman People #2), /Queensland/Ridge Exploration Pty Ltd

[2010] NNTTA 94

NATIONAL NATIVE TITLE TRIBUNAL

Russell Tatow & Ors (Iman People #2), /Queensland/Ridge Exploration Pty Ltd, [2010] NNTTA 94   (2 July 2010)

Application No:        QO09/24

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Russell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton, Richard Doyle and Madonna Barnes on behalf of the Iman People #2  (native title party)

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The State of Queensland   (government party)

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Ridge Exploration Pty Ltd  (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:                   John Sosso
Place:                         Brisbane
Date of dismissal:      2 July 2010

Representatives:         

Native title parties:    Mr Michael Owens, Lawyer and Consultant

Government party:     Ms Sara Newrick, State of Queensland.

Grantee parties:         Mr Alan Thompson, Mining Tenement Services;    

Catchwords:             Native title – future act – proposed grant of exploration permit - expedited procedure objection application – government party withdraws assertion that s 29 applies – no jurisdiction – expedited procedure objection application dismissed.

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

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

[1] On 27 October 2008, 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 Mineral (EPM 16857) to Ridge Exploration Pty Ltd. The notice included a statement that it considered that the grant attracted the expedited procedure and specified 29 October 2008 as the notification day for the purpose of s.29(4)(a).

[2] On 23 February 2009, the native title party lodged with the National Native Title Tribunal (“the Tribunal”), an expedited procedure objection application pursuant to s.32(3).

1. On 26 February 2009, 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. On 25 June 2010, the Tribunal was advised that pursuant to s.32(7) the government had withdrawn its assertion that the proposed future act was an act that attracted the expedited procedure.

3. A government party which includes in a s.29 notice a statement that it considers the proposed future act attracts the expenditure procedure (s.29(7)) is entitled to withdraw that assertion at any time prior to the Tribunal making a determination pursuant to s.32(4). If a government party withdraws its assertion, s.31(1) applies as if the section notice did not include such a statement. Section 31(1) requires the negotiation parties to negotiate in good faith with a view to obtaining agreement to the doing of the proposed future act with or without conditions.

4. In this matter the government party has withdrawn its assertion that the proposed future act attracts the expedited procedure before the Tribunal has made a determination, and accordingly the normal right to negotiate applies.

5. As the Tribunal does not have before it an assertion by the government party that the proposed future act attracts the expedited procedure, the Tribunal no longer has the jurisdiction to make a determination under s.32. In the absence of any jurisdiction to proceed and make a determination on whether the proposed future act attracts the expedited procedure, the appropriate course of action is to dismiss the expedited procedure objection application pursuant to s.148(a).

Decision

1. The expedited procedure objection application lodged by the Iman People #2 in relation to EMP 16857 is dismissed pursuant to s.148(a) of the Native Title Act 1993 (Cth).

John Sosso
Deputy President