Sam Dallachy & Ors on behalf of the Barada Kabalbara Yetimarala People v Caml Resources Pty Ltd and Ors
[2019] NNTTA 69
•11 September 2019
NATIONAL NATIVE TITLE TRIBUNAL
Sam Dallachy & Ors on behalf of the Barada Kabalbara Yetimarala People v CAML Resources Pty Ltd and Ors [2019] NNTTA 69 (11 September 2019)
Application No: | QO2019/0019 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Sam Dallachy & Others on behalf of the Barada Kabalbara Yetimarala People (QC2013/004)
(native title party)
- and -
CAML Resources Pty Ltd
(first grantee party)
- and -
Foxleigh Coal Pty Ltd
(second grantee party)
- and -
Nippon Steel & Sumitomo Metal Australia Pty Ltd
(third grantee party)
- and -
State of Queensland
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Mr JR McNamara, Member |
Place: | Brisbane |
Date: | 11 September 2019 |
Catchwords: | Native title – future acts – proposed grant of exploration permit – expedited procedure objection application – excluded land – whether objector is a native title party for the purposes of the future act – standing to lodge objection – jurisdiction of the Tribunal to conduct inquiry – objection application dismissed |
Legislation: | Native Title Act1993 (Cth) ss 26, 29, 148(a) Mineral Resources Act 1989 (Qld) ss 141, 176A |
Cases: | Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116 (‘Anaconda’) Andy Andrews, Jeffrey Waller & Anita Camfoo (on behalf of the Jurrangluk (Ngarralak), Garl?mayn, Girrimbilba, Bullu, Bunno (Yurr?tmayn) & Mernemerne, Benno (Warriba), and Dakal groups); Tex Camfoo, Peter Woods, David Daniels & Doreen Ponto (on behalf of the Ngalakan group); Peter Woods, Tex Camfoo and Sammy Bulabul (on behalf of the Ngalakan and Rembarrnga Groups)/Exploration & Resource Development Pty Ltd/Northern Territory [2002] NNTTA 170 (19 August 2002) (‘Exploration & Resource Development’) Hale v Western Australia [2015] FCA 560 (‘Hale’) Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467 (‘Mineralogy’) Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (22 July 2019) (‘Gianni’) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Buxton Resources Limited [2019] NNTTA 51 (12 July 2019) (‘Buxton Resources’) |
| Representative of the native title party: | Ms Kelly Thomas-Greer, Queensland South Native Title Services |
| Representative of the grantee parties: | Mr Liam Davis, McCullough Robertson |
| Representative of the Government party: | Ms Karen Dawson, Department of Natural Resources, Mines and Energy Mr John Heaney, Crown Law |
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
The State of Queensland (‘the government party) issued a notice pursuant to s29 of the Native Title Act 1993 (Cth) (‘the Act’) headed ‘NOTICE OF PROPOSED ADDITION OF EXCLUDED LAND INTO AN EXPLORATION PERMIT FOR COAL’. The notice identified the proposed addition of Excluded Land into Exploration Permit 1139 was sought by CAML Resources Pty Ltd, Foxleigh Coal Pty Ltd, and Nippon Steel & Sumitomo Metal Australia Pty Ltd (collectively ‘the grantee party’) (‘Notice’). The Notice included the statement that ‘the grant of each Exploration Permit to which this notice applies is an act attracting the Expedited Procedure’. The notification date was 5 December 2018.
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 party and the State must negotiate in good faith with all registered native title claimants and registered native title bodies corporate for the area.
An objection to the expedited procedure statement was lodged on behalf of the Barada Kabalbara Yetimarala People (‘the Native Title Party’, the Native Title Party is also referred to in correspondence as ‘BKY’) on 27 February 2019.
The objection was accepted by the Tribunal on 15 March 2019. On 18 March 2019 the Tribunal wrote to the parties by email informing them of the objection.
On 19 March 2019 the grantee party wrote to the Tribunal and the parties saying that the land parcels the subject of the application for the addition of Excluded Land under s176A of the Mineral Resources Act 1989 (Qld) (‘MRA’) ‘are not overlapped by the BKY native title application’, and invited the Native Title Party to consider whether it wished to proceed with the objection.
In response, on 10 April 2019, the Native Title Party said it was: ‘of the view that pursuant to sections 26(1)(c)(ii) and 29(2) of the Act, BKY is a native title party affected in relation to any land and waters that will be effected by the act (to extend the area of EPC 1139, which partially overlaps the BKY area).’ Further, the Native Title Party said: ‘We ask that the Member assesses this information in relation to the expedited procedure objection lodged by BKY to the grant of the variation to EPC 1139.’
At a status conference on 12 April 2019 I requested that parties provide the Tribunal with a joint submission before Friday, 10 May 2019 (extended by consent to 22 May 2019), of the agreed issues and articulate what the parties are requesting from the Tribunal in relation to this matter.
The questions agreed by the grantee party and the native title party are as follows:
The Parties are seeking the Tribunal’s view on whether:
(a) the Native Title Party is a ‘native title party’ in relation to the Application; and
(b) whether the Native Title Party has standing to lodge an objection in relation to the Application.
For the sake of clarity the Native Title Party is BKY. Question (a) asks whether BKY is a ‘native title party’ in relation to this matter as defined by s29(2) of the Act.
The questions as framed seek the Tribunal’s ‘view’, however the answers direct the Tribunal to either proceed with the inquiry, or dismiss the application and not proceed with the inquiry.
On 6 June 2019 I sought further information from the parties on or before 14 June 2019, in these terms: ‘To assist (the Member) with his consideration of this matter could the parties address directly the (actual) wording, form, and content, of the s29 notice; and, based on any views expressed in relation to the s29 notice, provide any observations in light of Hale v Western Australia [2015] FCA 560’.
Agreed Facts
The following facts, as extracted from the joint submission lodged by the parties on 22 May 2019, were agreed by the parties:
“Grant of EPC 1139
1. The Grantee Parties are the authorised holders of exploration permit EPC 1139, which was granted on 7 August 2007.
2. EPC 1139 was granted pursuant to the Department of Natural Resources, Mines and Energy’s Operating Policy — Excluding land subject to native title (MIN/2015/1250). The Operating Policy makes provision for particular permits to be granted where an application is made and:
(a)less than or equal to 10% of the area applied for is subject to native title; and
(b)the area subject to native title does not include a whole sub-block.
3. In such cases, the permit application may progress, with the area subject to native title being excluded from the area of the permit at the time of grant. As the area is excluded from the permit, no resource activities are permitted on this land.
4. The excluded land may be added back into the permit at a later date, under the applicable provisions to ‘add excluded land’ under the Mineral Resources Act 1989 (Qld) (MRA), and this requires a native title process to be completed (by nature of varying a right to mine or extending the area to which it relates).
5. EPC 1139 overlaps:
(a)two registered native title claims, being:
(i)the Native Title Party’s claim, towards the north of EPC 1139;
(ii)the Gaangalu Nation People’s claim (QC2012/009) (GNP), towards the lower east side of EPC 1139; and
(b)an area of land that is not overlapped by any current registered native title claims.
(The parties also agreed a map of EPC 1139 (Attachment 1 to these reasons).)
Application for addition of excluded land
6. On or about 19 September 2018, the Grantee Parties made an application, pursuant to the MRA, to add two specific parcels of excluded land to EPC 1139 (Application).
7. The Application is limited to land parcels on Lot 2 on TT422 and Lot 3 on TT422 (Additional Land).
8. The Additional Land:
(a)does not overlap the Native Title Party’s claim area, or the area of the GNP native title claim; and
(b)falls within an area not overlapped by any current registered native title claims.
9. The adding of the Additional Land to EPC 1139 is a future act covered by section 26(1)(c)(ii) of the Native Title Act 1993 (Cth) (NTA).
10.On or about 5 December 2018, the Government Party notified the Native Title Party of the Application via a section 29 notice (Notice).
11.The Notice provides that the relevant act is the proposed addition of the Additional Land. The Notice includes a statement that the Government Party has deemed that the relevant act attracts the Expedited Procedure, pursuant to section 32(1) of the NTA. Provision is made for the act to attract the expedited procedure in the circumstances set out in section 237 of the NTA.
12. On or about 27 February 2019, the Native Title Party lodged an objection against the inclusion of the statement that the State considers the grant the subject of the Application a future act attracting the Expedited Procedure.”
Is the Native Title Party a ‘native title party’ in relation to the Application?
The terms Additional Land and Excluded Land appear to be used interchangeably by the parties.
The parties agree that the Notice is, on its face, in the correct form. They also agree that the (future) act is the variation of a ‘right to mine’, to extend the area to which it relates (s26(1)(c)(ii) of the Act).
The obligation in s29(1) of the Act is to give notice of the ‘act’. The act is variously described as: ‘… proposed addition of excluded land into an exploration permit …’; ‘(It is proposed to) grant an application to add Excluded Land to the Exploration Permit ….’; ‘an application to add Excluded Land’; and, (oddly) the ‘grant of each Exploration Permit to which this notice applies is an act attracting the Expedited Procedure’.
The ‘insert’ in the Notice refers to: ‘Proposed addition of Excluded Land into Exploration Permit 1139 …’. The map depicts a shaded area as EPC 1139. The text box on the map says: ‘land to be excluded’ with arrows to areas with darker shading.
Despite some peculiarity with expression, the Notice in my view was not apt to mislead in relation to its intention.
The grantee party submits that the question should be answered in the negative on the basis that the Native Title Party is not the registered claimant for the Excluded Land, the subject of the application.
The Native Title Party says that the grant of the additional land has the effect of extending the area of (existing) EPC 1139 which (currently) partially overlaps an area for which it is the registered claimant. The Native Title Party does not contend that it is the registered claimant for the Excluded Land.
The Native Title Party says the ‘increase of the area of EPC 1139 results in an act that affects the land or waters overlapped by all of the areas of EPC 1139’. More specifically the Native Title Party says: ‘The future act is not limited to an act affecting only the land or water overlapped by the Additional Land only’.
In its further submission the grantee party says that the relevant area is the land the subject of the Application, not the broader area of EPC 1139.
The grantee party refers to the comments of Barker J in Hale at [116] as follows:
Currently the future act which has attracted the s29 notice includes the land or waters the subject of the objector’s registered native title claim. If that notice was withdrawn and there was a fresh notification given that did not include that area, then it would appear that no requirement would arise under the NTA to notify the current objector and, in such a case, the objector would have no right to object to the act under the NTA … (emphasis added)
Although there is nothing in the material to suggest that (under the MRA) the grantee party could have applied for a ‘stand-alone’ EPC over the Excluded Land, I accept the proposition.
What are the land or waters affected by the act?
Framed in a different way, is it the Excluded Land only or all of EPC 1139 which is the land or waters affected by the act?
Section 176A of the MRA is as follows:
176A Application to add excluded land to existing permit
(1)The holder of an exploration permit (the existing permit) may apply to the Minister to add excluded land to the existing permit.
(2)The provisions of this chapter apply, with necessary changes, to an application under subsection (1) as if it were an application under section 133.
(3)Without limiting subsection (2), in deciding the application, the Minister may —
(a)impose conditions under section 141(1)(j) in addition to any conditions that apply under the existing permit; and
(b)fix an amount of security to be deposited under section 144 in addition to any security for the existing permit.
(4)On the granting of the application, the excluded land is included in the existing permit.
(5)In this section—
excluded land means land that was the subject of a specific exclusion when the existing permit was granted or that was taken to be excluded under section 132.
Section 176A(2) requires an application to add excluded land to be in the form and contain the content of a exploration permit application.
A search of the Queensland Government Mines Online website discloses the EPC 1139 Resource Authority Public Report. The report informs me amongst other things that EPC 1139 was originally granted on 7 August 2007; its current term is 5 years; and, its expiry date is 6 August 2022. Under the heading ‘Exclusions’ it says: ‘Land or waters where native title may or continues to exist under the Native Title Act 1993 (Cth) is excluded from the permit area’. Under the heading ‘Native title’ it says: ‘All land subject to Native Title (<10%) is excluded from the permit area. Predominantly Exclusive Land’.
The Excluded Land arrangements in the MRA do not exist for the sole purpose of excluding land where native title may exist. They also operate in other specified circumstances.
The Excluded Land proposed to be added is those areas specified in the notice (only).
It is noted that in deciding an ‘addition of excluded land’ application, the Minister may impose conditions under s141(1)(j) of the MRA in addition to any conditions that apply under the existing permit. Section 141(1)(j) simply provides that each exploration permit shall be subject to such other conditions as are determined by the Minister. This suggests that the existing conditions applying to EPC 1139 are unaffected.
Were other conditions to be imposed over the current area of EPC 1139 in the course of adding the Excluded Land it is unlikely that those additional conditions could constitute a future act which would trigger a process under subdivision P of Part 2, Division 3 of the Act.
Jurisdiction
The Tribunal may dismiss an application at any stage of an inquiry if it is satisfied that it is not entitled to deal with the application (Anaconda).
It is well established that when a jurisdictional challenge is made it is not open to the Tribunal to ignore the challenge. The Tribunal is required in such circumstances to hear the parties and determine whether it has jurisdiction before it can proceed. In Exploration & Resource Development, Member Sosso said at [42]:
When a party initiates a jurisdictional challenge, the Tribunal cannot automatically assume that it has jurisdiction and determine an expedited procedure objection application on its merits. A properly made challenge to jurisdiction must be dealt with at the outset. It is not open to the Tribunal to ignore the challenge. The Tribunal is required in such circumstances to hear the parties and determine whether it has jurisdiction before it can proceed. Carr J considered this principle in Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467 (“Mineralogy”). His Honour made the following comments (at 478): “I do not think that it is open to the tribunal, where its jurisdiction or authority is under challenge, to take the course of assuming that it has jurisdiction and authority on the basis that having to decide the question would involve consideration of complex matters of fact and law. The High Court, in the case which I have cited above, referred to ‘sufficient inquiry’ and where the jurisdiction is disputed, to ‘adequate and careful inquiry, as being the duty of such a tribunal before accepting jurisdiction.” Carr J went on to note that there are potentially “very serious consequences to the parties which turn on the tribunal’s determination that an act is one which attracts the expedited procedure.”
In my view the Native Title Party (BKY) is not a native title party in relation to the application to add the excluded land.
Section 29 of the Act necessitates that an objector’s standing to object can only arise if the grant of the proposed future act specified in the s 29 notice is to be over any of the land or waters within the native title party’s claim or determination area. However, an objection validly made and accepted is not necessarily limited to the area specified in the s 29 notice where the objector’s native title exists. In Buxton Resources I found that while certain significant stone arrangements were in an area of extinguished native title (and therefore outside the native title party’s area of determined native title rights and interests), nevertheless it was likely that there would be interference with a site of particular significance and the expedited procedure should not apply. See also the decision of the Hon John Dowsett AM, President, in Gianni. In Hale, Barker J at [113] said:
Just because the objector’s standing to object only arises because it is a registered claimant in relation to a portion of land in the proposed tenement area, does not necessarily mean that the act might not interfere directly with the carrying on of the community or social activities of the objector on the land or waters to which they claim native title; or that the act might not interfere with areas or sites of particular significance to them, which are to be found outside the area to which they claim native title, but within the ground the subject of the proposed tenement. In each case, that is the factual question for inquiry and determination by the arbitral body.
In this case I am not satisfied there is a valid objection. The land the subject of the Notice is not EPC 1139, it is the excluded land only. To have made a valid objection BKY must have been a registered native title claimant in relation to the excluded land.
Decision
The objection in relation to the application to add Excluded Land to Exploration Permit 1139 (‘Excluded Land’) be dismissed on the basis that the applicant is not the registered claimant for the Excluded Land. The Tribunal has no jurisdiction to deal with the application.
The expedited procedure objection application is dismissed pursuant to s148(a) of the Native Title Act 1993 (Cth).
Mr JR McNamara
Member
11 September 2019
0
2
0