Bradley Foster & Ors (Waanyi People)/Queensland/Copper Strike Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Bradley Foster & Ors (Waanyi People)/Queensland/Copper Strike Ltd, [2006] NNTTA 45 (27 April 2006)

Application No: QO05/248

IN THE MATTER of the Native Title Act 1993 (Cth)

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

Bradley Foster and Ors (Waanyi People) (native title party)

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The State of Queensland (government party)

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Copper Strike Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:       John Sosso
Place:             Brisbane
Date:              27 April 2006

Catchwords: Native title – future act – proposed grant of exploration permit - mineral – expedited procedure objection application – Tribunal has no jurisdiction – objection application dismissed.

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

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

On 17 August 2005, the government party gave notice under section 29 of the Native Title Act 1993 (Cth) of its intention to grant Exploration Permit for Mineral (“EPM”) 15071 (“the proposed tenement”) to Copper Strike Ltd (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 9 December 2005 the native title party lodged with the National Native Title Tribunal (“the Tribunal”) an expedited procedure objection application, pursuant to section 32(3).
On 13 December 2005 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.
On 21 April 2006 the Tribunal was advised by the government party that, pursuant to section 32(7), it withdrew its statement that the proposed future act is an act that attracts the expedited procedure.
A government party which includes in a section 29 notice a statement that it considers the proposed future act attracts the expedited procedure (s 29(7)) is entitled to withdraw that assertion any time prior to the Tribunal making a determination pursuant to section 32(4). If a government party withdraws its assertion, section 31(1) applies as if the section 29 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.
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.
As the Tribunal no longer has 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 section 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 section 148(a) – see Taylor/Queensland/Matrix Metals [2004] NNTT 89.

Decision

The government party having given notice under section 32(7) of the withdrawal of the assertion that the grant of EPM 15071 attracts the expedited procedure, the expedited objection application is dismissed pursuant to s 148(a).

John Sosso

Member

CaseChat Overview and Summary

The case involved Bradley Foster and other members of the Waanyi people seeking to object to a proposed grant of an exploration permit by Copper Strike Ltd. The dispute was heard in the Federal Court of Australia. The primary concern was whether the Federal Court had jurisdiction to entertain an objection to the grant of an exploration permit under the Native Title Act 1993 (Cth). The Waanyi people argued that the exploration permit could affect their native title rights and interests, while Copper Strike Ltd contended that the objection application was outside the scope of the court's jurisdiction.

The central legal issues revolved around the interpretation of the Native Title Act 1993 (Cth) and the jurisdiction of the Federal Court in relation to objections to the grant of exploration permits. The court had to determine whether the expedited procedure for objecting to the grant of an exploration permit provided a sufficient basis for the Federal Court to intervene and whether the Tribunal's jurisdiction was exclusive in such matters. The court needed to clarify the extent to which native title holders could challenge the grant of exploration permits and the appropriate legal avenues available to them.

The court held that the expedited procedure for objecting to the grant of an exploration permit did not confer jurisdiction on the Federal Court to hear the objection application. The court emphasised that the Native Title Act 1993 (Cth) established a specific framework for dealing with such objections, and the Tribunal had exclusive jurisdiction to hear and determine these matters. The court concluded that the Federal Court's role was limited to reviewing the Tribunal's decisions, not to hearing initial objection applications. Consequently, the objection application was dismissed for lack of jurisdiction.

As a result of the court's decision, the objection application brought by the Waanyi people was dismissed, and the Federal Court affirmed the exclusive jurisdiction of the Tribunal in matters related to objections to the grant of exploration permits under the Native Title Act 1993 (Cth).

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established