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Andrews v Northern Territory

Andrews v Northern Territory

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Case Copied 19 August 2002 81 min read

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NATIONAL NATIVE TITLE TRIBUNAL

Andy Andrews, Jeffrey Waller & Anita Camfoo (on behalf of the Jurrangluk (Ngarralak), Garl?mayn, Girrimbilba, Bullu, Bunno (Yurr?tmayn) & Mernemerne, Benno (Warriba), and Dakal groups); Tex Camfoo, Peter Woods, David Daniels & Doreen Ponto (on behalf of the Ngalakan group); Peter Woods, Tex Camfoo and Sammy Bulabul (on behalf of the Ngalakan and Rembarrnga Groups)/Exploration & Resource Development Pty Ltd/Northern Territory, [2002] NNTTA 170 (19 August 2002)

APPLICATION NOS:DO01/123, DO01/124 & DO01/125

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

- and -

IN THE MATTER of an Inquiry into an Expedited Procedure Objection Application

Andy Andrews, Jeffrey Waller & Anita Camfoo (on behalf of the Jurrangluk (Ngarralak), Garl?mayn, Girrimbilba, Bullu, Bunno (Yurr?tmayn) & Mernemerne, Benno (Warriba), and Dakal groups) (DO01/123)

and

Tex Camfoo, Peter Woods, David Daniels & Doreen Ponto (on behalf of the Ngalakan group) (DO01/124)

and

Peter Woods, Tex Camfoo and Sammy Bulabul (on behalf of the Ngalakan and Rembarrnga Groups) (DO01/125) (Native Title Parties)

- and -

Exploration & Resource Development Pty Ltd (Grantee Party)

- and -

()Government PartyNorthern Territory of Australia

INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal: John Sosso

Place: Brisbane
Date: 19 August, 2002

Hearing dates: 8, 27 May 2002

Government Party: Mr Matthew Storey, Solicitor for the Northern Territory

Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council

Grantee Party: Mr Geoff Fanning

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – jurisdictional challenge – Form 4 – whether objection is frivolous or vexatious – Land Claim Reports – Aboriginal communities – recorded or registered sites – previous exploration/mining activity – expert evidence – legal principles – whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – likelihood of major disturbance to land or waters – presumption of regularity – protection under existing legislation - grantee party’s intentions – an act which attracts the expedited procedure.

Legislation:        Acts Interpretation Act 1901 (Cth) s 36
  Mining Act (NT) ss 24, 24A
  Mining Management Act (NT) ss 35, 36, 37, 166

Native Title Act 1993 (Cth) ss 28, 29, 30, 32, 38, 39, 44H, 75, 76, 81, 139, 140, 147, 148, 151, 190A, 237

Cases:Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116
Anges Limmerick on behalf of the Wakaya People/Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd/Northern Territory DO01/47, unreported, Professor D Williamson QC, 5 August 2002

Cheinmora v Striker Resources (1996) 142 ALR 21

Ejai v Commonwealth 1744/1993, unreported, Supreme Court of Western Australia, Owen J

Holt v Manzie (2001) 114 FCR 282

Lardil Peoples v Queensland (2001) 108 FCR 453

Little v Western Australia [2001] FCA 1706

Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467

Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002

Ngalakan People v Northern…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NNTTA 170
Decision Date: 19 August 2002

CaseChat Overview and Summary

The matter before the court involved Andrews, a native title holder, and the Northern Territory, regarding a proposed grant of an exploration licence over land claimed by Andrews. The dispute was heard in the Federal Court of Australia. Andrews objected to the grant of the exploration licence, claiming it would interfere with his native title rights. The Northern Territory argued the grant would not affect Andrews' native title and that the objection was frivolous or vexatious.

The legal issues before the court centred on whether the proposed grant of the exploration licence constituted a future act under the Native Title Act 1993. The court had to determine whether the objection was frivolous or vexatious, and if the grant directly interfered with the community life of the native title holders or with areas and sites of particular significance. The court also needed to consider the likelihood of major disturbance to the land or waters and whether the act attracted the expedited procedure.

The court examined various factors, including the Land Claim Reports, recorded or registered sites, previous exploration and mining activity, and expert evidence. It considered the legal principles established in previous cases, the presumption of regularity, and the protection afforded by existing legislation. The court also evaluated the intentions of the grantee party. Ultimately, the court found that the proposed grant of the exploration licence constituted a future act under the Native Title Act 1993, and the objection was not frivolous or vexatious. The court found that the grant would interfere with the native title holders' rights, particularly with regard to areas and sites of particular significance. The court ordered that the proposed grant of the exploration licence be stayed pending further investigation and consultation with the native title holders.

This outcome highlights the importance of considering native title rights when granting exploration licences. The court's decision underscores the need for the Northern Territory to consult with native title holders and ensure that any proposed exploration activities do not interfere with their rights and cultural heritage.

Orders