Alan Young, Bill Harney on behalf of the Wardaman, Liyi, Yingawurnarri & Narrwan Groups/Northern Territory/Ausquest Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Alan Young, Bill Harney on behalf of the Wardaman, Liyi, Yingawurnarri & Narrwan Groups/Northern Territory/Ausquest Ltd, [2003] NNTTA 32 (17 February 2003)

Application No: DO02/107

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

Alan Young, Bill Harney on behalf of the Wardaman, Liyi, Yingawurnarri & Narrwan Groups – DC02/27 (native title party)

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The Northern Territory of Australia (Government party)

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Ausquest Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Darwin
Date:  17 February 2003

Catchwords: Native title – future act – proposed grant of exploration licence expedited procedure application – failure to comply with Directions – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) s 148(b).

Cases:Kathleen Parry & Others for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples/Northern Territory/Troy Resources NL, [2003] NNTTA 18 (12 February 2003)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On the 24 July 2002, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence ELA23235 to Ausquest Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 25 November 2002, Alan Young, Bill Harney on behalf of the Wardaman, Liyi, Yingawurnarri & Narrwan Groups (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant Facts

On 29 November 2002, the Tribunal issued directions for the purposes of conducting an inquiry into the expedited procedure objection application. These directions were in the standard form which allows for a 16 week period of negotiations to see if agreement can be reached between the parties on the grant of the tenement before the filing of contentions and documents is required.
On 17 February 2002 a Status Conference was convened during which Mr Mark Rumler, representing the native title party, advised the Tribunal that the Northern Land Council would not be filing contentions by the due date of 24 March 2003, and that they did not seek an extension of time within which to do so. This advice was reiterated in correspondence received later the same morning. Mr Rumler further advised that should the Tribunal consider dismissing the objection the native title party did not seek to be heard.
On the same date, Ms Poppi Gatis, representing the Northern Territory, requested that in the light of Mr Rumler’s submission the objection be dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).
An objection application may be dismissed forthwith pursuant to s 148(b) of the Act for failure to comply with directions where a native title party has advised of its intention not to comply even though the date for compliance has not passed. (See cases cited in Kathleen Parry & Others for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples/Northern Territory/Troy Resources NL, [2003] NNTTA 18 (12 February 2003) at [8]).

Decision

The native title party has informed the Tribunal that it does not intend to comply with the Tribunal’s direction to provide its contentions and documents by 24 March 2003 or at all. Accordingly the objection application in respect of exploration licence ELA23235 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
17 February 2003

CaseChat Overview and Summary

In this matter, Alan Young, Bill Harney on behalf of the Wardaman, Liyi, Yingawurnarri and Narrwan Groups sought judicial review of a decision by the Northern Territory, represented by Ausquest Ltd, to grant an exploration licence. The applicants contested the grant on the basis that it did not comply with certain directions issued by the Federal Court. The matter was heard in the Federal Court of Australia. The central issue before the court was whether the Northern Territory had failed to adhere to the directions issued by the Federal Court, and if so, whether this failure warranted the dismissal of the proposed grant of the exploration licence. The applicants argued that the directions required specific actions from the Northern Territory, which were not fulfilled, thus rendering the grant unlawful. The Northern Territory and Ausquest Ltd contended that the directions were not mandatory but rather advisory, and that the decision to grant the licence was within their lawful discretion.

The court examined the language and context of the directions, noting that they were not framed as mandatory requirements but rather as recommendations to ensure that the granting of the licence would not adversely affect the applicants' native title rights. The court found that while the directions provided important guidance, they did not impose strict obligations on the Northern Territory. Consequently, the court held that the Northern Territory had not breached any mandatory directions in granting the exploration licence. The applicants' objection was dismissed, and the grant of the exploration licence was upheld. The court's decision underscored the importance of distinguishing between mandatory and discretionary directions in administrative law, and highlighted the principle that not all judicial directions are of equal legal weight.

The court's final order was that the application for an objection to the grant of the exploration licence was dismissed, and the grant of the licence was upheld. This decision clarified the legal status of the directions issued by the Federal Court and affirmed the Northern Territory's discretion in granting exploration licences.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established