William Doyle & Ors (Kalkadoon People #4), William Doyle & Ors (Kalkadoon People #5)/Queensland/Ivanhoe Cloncurry Mines Pty Ltd; Matrix Metals Limited

[2011] NNTTA 112

NATIONAL NATIVE TITLE TRIBUNAL

William Doyle & Ors (Kalkadoon People #4), William Doyle & Ors (Kalkadoon People #5)/Queensland/Ivanhoe Cloncurry Mines Pty Ltd; Matrix Metals Limited,
[2011] NNTTA 112  (27 June 2011)

Application No:        QO10/109, QO10/110, QO10/127, QO10/249, QO11/26

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     (first native title party)

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 #5     (second native title party)

- and -

The State of Queensland   (government party)

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Ivanhoe Cloncurry Mines Pty Ltd  (grantee party)

Matrix Metals Limited  (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Tribunal:   John Sosso
Place:                           Brisbane
Date of dismissal:        24 June 2011
Date of reasons:         27 June 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 Peter Hwang, Blake Dawson Lawyers

Catchwords:             Native title – future act – proposed grant of exploration licences - 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 government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant Exploration Permits (EPM) to the grantee parties as listed, and included in the notices a statement that it considered that the grants attracted the expedited procedure.

[2] On the dates specified in the attached Schedule, the native title parties lodged with the National Native Title Tribunal (Tribunal), expedited procedure objection applications pursuant to section 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 the latter half of 2010 and early 2011 with adjournments provided to allow the parties to finalise agreements.

[6]         By the time the Status Conference was convened on 27 May 2011 no agreements had been finalised.  Directions were made on 27 May 2011 with the addition of a clause requiring the native title parties to advise the Tribunal by close of business on 17 June 2011 if they intended to comply with those directions.  On 20 June 2011 the representative of the native title parties advised the Tribunal that they had not received any instructions from the native title parties. 

[7] On 21 June 2011 a further Status Conference was convened and new Directions were made which required the native title parties to provide Statement of Contentions and related documents to the Tribunal and each other party by close of business on 24 June 2011. Direction 1A then provided that if the native title party had not complied by close of business on 24 June 2011 the Tribunal, pursuant to s.148(b) of the Act, would dismiss forthwith the expedited procedure objection applications.

[8]         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 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 parties have 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.

[9]         The Springing Directions, having required the native title parties to submit evidence by close of business on 24 June 2011, were activated on that date by the failure of the native title parties to comply.

Decision

[10] 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 112 (27 June 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
17991	8/01/10	17/02/10	8/06/10	QO10/109	15/06/10	Ivanhoe Cloncurry Mines Pty Ltd	William Doyle, Noelene Dempsey, Ilona Parter, Sonny Condren, Hazel Munro, Sue Samardin Jr, Pat Kyle, Connie Craigie, Doug Bruce & Anor QC05/12	24/06/11
17991	8/01/10	17/02/10	8/06/10	QO10/110	15/06/10	Ivanhoe Cloncurry Mines Pty Ltd	William Doyle, Noelene Dempsey, Ilona Parter, Sonny Condren, Hazel Munro, Sue Samardin Jr, Pat Kyle, Connie Craigie, Doug Bruce & Anor QC06/2	24/06/11
18204	1/02/10	17/03/10	5/07/10	QO10/127	8/07/10	Ivanhoe Cloncurry Mines Pty Ltd	William Doyle, Noelene Dempsey, Ilona Parter, Sonny Condren, Hazel Munro, Sue Samardin Jr, Pat Kyle, Connie Craigie, Doug Bruce & Anor QC06/2	24/06/11
17907	6/07/10	18/08/10	20/10/10	QO10/249	10/01/11	Matrix Metals Limited	William Doyle, Noelene Dempsey, Ilona Parter, Sonny Condren, Hazel Munro, Sue Samardin Jr, Pat Kyle, Connie Craigie, Doug Bruce & Anor QC05/12	24/06/11
18401	5/08/10	15/09/10	17/01/11	QO11/26	31/01/11	Ivanhoe Cloncurry Mines Pty Ltd	William Doyle, Noelene Dempsey, Ilona Parter, Sonny Condren, Hazel Munro, Sue Samardin Jr, Pat Kyle, Connie Craigie, Doug Bruce & Anor QC05/12	24/06/11