William Doyle & Ors (Kalkadoon People #4)/Queensland/Newcrest Operations Limited; Ivanhoe Cloncurry Mines Pty Limited

[2011] NNTTA 198

NATIONAL NATIVE TITLE TRIBUNAL

William Doyle & Ors (Kalkadoon People #4)/Queensland/Newcrest Operations Limited; Ivanhoe Cloncurry Mines Pty Limited, [2011] NNTTA 198   (15 November 2011)

Application No:        QO11/10 & QO11/84

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 on behalf of the Kalkadoon People #4        (native title party)

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The State of Queensland   (government party)

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Newcrest Operations Limited; and
Ivanhoe Cloncurry Mines Pty Limited                             (grantee parties)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Tribunal:                    John Sosso
Place:                          Brisbane
Date of dismissal:        11 November 2011
Date of reasons:          15 November 2011

Representatives:         

Native title party:       Ms Linda Hansen, Chalk & Fitzgerald, Solicitors

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

Grantee parties:         Mr Alan Thompson, Mining Tenement Services,
  Mr Damien Britnell, Ivanhoe Cloncurry Mines Pty Limited

Catchwords:             Native title – future act – proposed grant of exploration permits (EPM) - expedited procedure objection applications – inability to finalise negotiations – springing directions - failure to comply with Directions – expedited procedure objection applications 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 APPLICATIONS

[1] On the dates specified in the attached schedule, the State of Queensland (government party) gave notice under s. 29 of the Native Title Act 1993 (Cth) (the “Act”) of its intention to grant Exploration Permits (EPM 16662) to Newcrest Operations Limited and (EPM 18634) to Ivanhoe Cloncurry Mines Pty Limited (“the grantee parties”), and included in the notice a statement that it considered that the grants attracted the expedited procedure. For the purpose of s. 29(4)(a), notification days were specified and are set out in the attached Schedule.

[2] On the dates specified in the attached Schedule, the legal representative of the Kalkadoon People #4 (“native title party”) lodged with the National Native Title Tribunal (“the Tribunal”), expedited procedure objection applications pursuant to s. 32(3).

[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]        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.

[5]        Representatives for the parties appeared regularly at Status Conferences convened throughout 2011 with adjournments provided to allow the parties to finalise agreements.

[6] By the time the Status Conference was convened on 7 October 2011 no agreements had been finalised. Directions were made 7 October 2011 requiring the native title party to provide Statement of Contentions and related documents to the Tribunal and each other party by close of business on 11 November 2011. Direction 1A provided that if the native title party had not complied by close of business on 11 November 2011 the Tribunal, pursuant to s.148(b) of the Act, would dismiss forthwith the expedited procedure objection applications.

[7]        The principles governing the making of “springing” or  “guillotine” Directions were 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 s. 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 the native title party is not willing to prosecute the expedited procedure objection applications, the Tribunal is empowered either to dismiss the applications 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 with a very short time frame was the more appropriate course of action.

[8]         The Springing Directions, having required the native title party to submit evidence by close of business on 11 November 2011, were activated at that time by the failure of the native title party to comply.

Decision

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

John Sosso

Deputy President

SCHEDULE  –  DETERMINATION [2011] NNTTA 198   (15 November 2011)

Tenement EPM	Government Party Notification	Notification Day s 29(4)(a)	Objection Application Lodged	Objection Application No.	Member Appointed	Grantee Party	Native Title Party & Claimant Application No.	Advice of Withdrawal or Discontinuance
16622	5/08/10	15/09/10	17/01/11	QO11/10	28/01/11	Newcrest Operations Limited	William Doyle, Noelene Dempsey, Ilona Parter, Sonny Condren, Hazel Munro, Sue Samardin Jr, Pat Kyle, Connie Craigie, and Doug Bruce on behalf of Kalkadoon People #4 QC05/12	11/11/11
18634	30/11/10	5/01/11	5/05/11	QO11/84	9/05/11	Ivanhoe Cloncurry Mines Pty Limited	William Doyle, Noelene Dempsey, Ilona Parter, Sonny Condren, Hazel Munro, Sue Samardin Jr, Pat Kyle, Connie Craigie, and Doug Bruce on behalf of Kalkadoon People #4 QC10/4	11/11/11