William Doyle & Ors (Kalkadoon People #4)/Queensland/Mt Isa Mines Limited

[2011] NNTTA 11

NATIONAL NATIVE TITLE TRIBUNAL

William Doyle & Ors (Kalkadoon People #4)/Queensland/Mt Isa Mines Limited, [2011] NNTTA 11  (14 February 2011)

Application No:        QO10/128

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

William Doyle, Noelene Dempsey, Ilona Parter, Sonny Condren, Hazel Munro, Sue Samardin, Pat Kyle, Connie Craigie, Doug Bruce & Anor on behalf of the Kalkadoon People #4     (native title party)

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The State of Queensland   (government party)

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Mt Isa Mines Limited  (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Tribunal:   John Sosso
Place:                           Brisbane
Date of dismissal:        4 February 2011
Date of reasons:         14 February 2011

Representatives:         

Native title party:       Ms Elizabeth McDonald, Chalk & Fitzgerald, Solicitors

Government party:    Ms Sara Newrick, Department of Employment, Economic Development & Innovation

Grantee party:            Mr Simon Cobb, Allens Arthur Robinson, Solicitors

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

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

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

Noy v Northern Territory (2003) 174 FLR 366

Teelow v Page (2001) 166 FLR 266

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

[1] On 1 February 2010, 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 18199) to Mt Isa Mines Limited (“the grantee party”). The notice specified 17 March 2010 as the notification day for the purpose of s.29(4)(a) and included a statement that it was considered that the grant attracted the expedited procedure.

[2] On 5 July 2010 William Doyle, Noelene Dempsey, Ilona Parter, Sonny Condren, Hazel Munro, Sue Samardin, Pat Kyle, Connie Craigie, Doug Bruce & Anor on behalf of the Kalkadoon People #4 (“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 8 July 2010, 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 inquiry.

2. It is the practice in Queensland for the Tribunal to convene 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. Representatives for the parties appeared at Status Conferences convened on 27 August, 29 October and 17 December 2010 when a further adjournment to the end of January 2011 was provided allow the parties to finalise an agreement.

4. By the time the Status Conference was convened on 27 January 2011 no agreement had been finalised. In these circumstances, requiring the government party to produce documents in order to comply with Directions, would not only be futile but would result in an unnecessary waste of the resources of the government party, when it was highly unlikely that the native title party would comply. Directions were made on 27 January 2011 requiring the native title party provide a statement of contentions and related documents to the Tribunal and each other party by close of business on 4 February 2011. Direction 1A then provided that if the native title party had not complied by close of business on 4 February 2011 the Tribunal, pursuant to s.148(b) of the Act, would dismiss forthwith the expedited procedure objection application.

5. 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 this matter the native title party has been unable to reach agreement with the grantee party. Where the Tribunal is informed that negotiations have been unsuccessful and that the native title party is not willing to prosecute the expedited procedure objection application, the Tribunal is empowered either to dismiss the application immediately (see Noy v Northern Territory (2003) 174 FLR 366) or make springing directions. In this matter I determined that the making of Springing Directions was the more appropriate course of action.

6. The Springing Directions, having required the native title party to submit evidence by close of business on 4 February 2011, were activated on that date by the failure of the native title party to comply.

Decision

1. The expedited procedure objection application in relation to EPM 18199 is dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth).

John Sosso

Deputy President