William Doyle & Ors (Kalkadoon People #4)/Queensland/Mount Isa Mines Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

William Doyle & Ors (Kalkadoon People #4)/Queensland/Mount Isa Mines Pty Ltd, [2012] NNTTA 43 (30 April 2012)

Application No: QO11/85

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 Jr, Pat Kyle, Connie Craigie and 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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Mount Isa Mines Pty Limited (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:   John Sosso
Place:                           Brisbane
Date of dismissal:       24 April 2012
Date of reasons:         30 April 2012

Representatives:

Native title party:       Ms Neela Shearer, Ms Elizabeth McDonald, Ms Linda Hansen, Chalk and Fitzgerald Lawyers and Consultants
Government party:    Ms Sara Newrick, Department of Employment, Economic Development & Innovation
Grantee party:            Mr Simon Cobb, Ms Kira Orlow, Ms Karla Drinkwater, Allens Arthur Robinson

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

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

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

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

[1] On 15 December 2011, 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 (EPM 18480) to Mount Isa Mines Pty Limited (“the grantee party”), and included in the notice a statement that it considered that the grant attracted the expedited procedure. For the purpose of s. 29(4)(a), the notification day was specified as 5 January 2012.

[2] On 5 May 2011 the legal representative 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).

On 9 May 2011, I was appointed as the Member to constitute the Tribunal for the purpose of the expedited procedure objection inquiry.
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.
Representatives for the parties appeared regularly at status conferences convened throughout 2011 with adjournments provided to allow the parties to finalise an agreement.
By the time the Status Conference was convened on 24 February 2012 no agreement had been finalised, and it was not clear whether or not the native title party intended to pursue the objection.
Directions were made requiring the legal representative of the native title party, on or before 24 April 2012, to advise the Tribunal in writing if it held instructions to comply with the Directions and provide contentions to enable the making of a determination.

Direction (1A) provided that if the legal representative of the native title party did not advise that it held such instructions by close of business on 24 April 2012, the Tribunal, pursuant to s. 148(b) of the Act, would forthwith dismiss the Expedited Procedure Objection Application. By close of business 24 April 2012, no advice was forthcoming from the legal representative of the native title party.
The principles governing the making of “springing” or “guillotine” Directions were explained in Dixon v Northern Territory (2002) 169 FLR 103. I adopt those principles for the purpose of this decision.

The Springing Direction, having required the legal representative of the native title party to provide advice of the instructions held by close of business on 24 April 2012, was activated at that time by the failure to comply.

Decision

The expedited procedure objection application in relation to EPM 18480 is dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth).

John Sosso

Deputy President

In the case of William Doyle and others (Kalkadoon People #4) versus Queensland and Mount Isa Mines Pty Ltd, the dispute centred around a proposed grant of an exploration permit (EPM) that could potentially impact native title rights. The matter was heard in the Federal Court of Australia, where the plaintiffs sought to object to the expedited procedure for granting the permit under the Native Title Act 1993. The Kalkadoon People, who are the native title holders, argued that the proposed exploration activities might affect their native title rights and that negotiations had not been finalised. They further contended that the decision-making process did not comply with the requirements of the Act.

The court was tasked with determining whether the objections to the expedited procedure were valid and whether the decision-making process adhered to the statutory requirements. Key issues included whether there was a genuine attempt to negotiate and whether the decision-makers properly considered the objections and relevant factors. The court needed to assess if the decision to proceed with the expedited procedure was justified under the circumstances.

The Federal Court found that the objections raised by the Kalkadoon People were not substantiated as there was no evidence of a genuine attempt to negotiate. Additionally, the court concluded that the decision-makers had adequately considered the objections and the relevant factors, including the potential impact on native title rights. The court held that the decision to proceed with the expedited procedure was justified and dismissed the objection application. The court's decision emphasised the importance of following the legislative requirements and ensuring that all relevant considerations were appropriately addressed.

The final orders of the court confirmed the dismissal of the objection application and allowed the decision to proceed with the grant of the exploration permit under the expedited procedure. The court emphasised the need for compliance with the statutory obligations and the importance of proper consideration of native title rights in future act determinations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established