Anges Limmerick on behalf of the Wakaya People (DC01/30)/Northern Territory/Elkedra Diamonds
[2002] NNTTA 102
•6 June 2002
NATIONAL NATIVE TITLE TRIBUNAL
Anges Limmerick on behalf of the Wakaya People (DC01/30)/Northern Territory/Elkedra Diamonds, [2002] NNTTA 102 (6 June 2002)
Application No: DO01/146
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an Inquiry into an expedited procedure objection application
Anges Limmerick on behalf of the Wakaya People (DC01/30) (Native Title Party)
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The Northern Territory of Australia (Government Party)
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Elkedra Diamonds (Grantee Party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Mrs Jennifer Stuckey-Clarke
Place: Darwin
Date: 06 June 2002
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) s148(b).
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On the 22 August 2001, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant ELA 22551 to Elkedra Diamonds (‘the grantee party’) and included in the Notice a statement that it considered that the grant attracted the expedited procedure.
On 21 December 2001, Anges Limmerick on behalf of the Wakaya People (‘the native title party’) made an expedited procedure objection application to the Tribunal.
Relevant Facts
At a Listing Hearing on 31 January 2002, the Tribunal directed;
On or before 7 May 2002 the State is to provide to the Tribunal, the objector and the grantee a statement of contentions and documents relevant to the Inquiry including:
(a)a topographical map of scale 1: 100,000 marked with
ithe areas of the licence/s and the location of registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989; and
iiboundaries of various tenures of land within and overlapping the boundaries of the tenement with details of the nature of each such tenure.
(b)the details of any Aboriginal community within and in the vicinity of the licence/s;
(c)the details of the registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989; and
d)Mining Tenement documents, including:
icopies of the application for the licence/s;
iicopies of the proposed Schedule of Endorsements and Schedules of Conditions;
iiidetails of any current mining tenement covering the same area and whether it was the subject to the right to negotiate provisions of the Native Title Act; and
ivdetails of available prior mining tenements granted over the same area including the date of the grant and the date of expiry.
va map showing the area of prior mining tenements in relation to the proposed tenement; and
videtails as to the nature and extent of previous mining activity on the area of the proposed tenement and the extent of previous disturbance to the land and waters of the area of the proposed tenement.
On or before 14 May 2002 the native title party shall provide the following to the Tribunal and each other party:
(a)a statement of contentions.
Statement of contentions to include:
· a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area; and
· Any sites information released from the Aboriginal Areas Protection Authority for the purposes of these proceedings in relation to the area of the proposed tenement and
· a statement of the community or social activities of the native title party that it is contended is likely to be interfered with directly by the grant of the tenement.
(b)a copy of each document relevant to the Inquiry (including any affidavit to be relied on).
Documents claimed to be of a confidential nature are to be placed in a separate sealed envelope, marked “Confidential” and provided to the Tribunal with a list (which is provided to the other parties) indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal; and
(c)if a request is made for an oral hearing, a statement of the evidence to be given by any witness for the native title party and the details of where the party proposes that the evidence be heard.
On or before 21 May 2002 the grantee party shall provide the following to the Tribunal and each other party:
(a)a statement of contentions; and
(b)a copy of each document relevant to the Inquiry (including any affidavit to be relied on).
Documents claimed to be of a confidential nature are to be placed in a separate sealed envelope, marked “Confidential” and provided to the Tribunal with a list (which is to be provided to the other parties) indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal; and
(c)a statement of the evidence to be given by any witness for the grantee party and the details of where the party proposes that the evidence be heard.
On or before 27 May 2002 each party may reply to the contentions made pursuant to Directions (1), (2) and (3).
A listing hearing (if necessary) will be held on 27 May 2002.
Liberty is given to apply to vary these directions or for a relisting of this hearing.
Parties are asked to note that:
·if the objector (the native title party) fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal, the Tribunal may dismiss the application (s 148(b) Native Title Act 1993 (as amended)); and
·a copy of any correspondence, e-mail or document provided to the Tribunal by any party must be provided simultaneously to every other party, unless there are any issues of confidentiality which arise.
·As far as practicable parties are to provide evidence in documentary form (see paragraph 3.14 of the Procedures under the Right to Negotiate Scheme issued by the Tribunal on 20 April 2000 and in particular para 3.14.5).
The government party complied with the directions filing its contentions and evidence on 7 May 2002. However, by letter dated 20 May 2002, the native title party advised the Tribunal and the other parties in a letter to the Tribunal dated 20 May 2002, the Native Title party stated;
“We advise on behalf of the Native Title Party that we have not been able to date to take instruction sufficient for the purpose of filing evidence in this matter and, for resource reasons, that we consider that there are no reasonable prospects in the foreseeable future to do so. Accordingly we will not be able to comply with the directions regarding the filing of material and contentions.
We assume, accordingly, that this matter will fall to be dealt with under s.148(b) of the Native Title Act.”Although the Tribunal advised the grantee party that if at the listings hearing
then scheduled for 27 May 2002, the present proceedings were not in fact dismissed and instead proceeded, the Tribunal would look favourably upon any application for an extension of time to file its contentions and evidence, the grantee party filed its documents on 20 May 2002.
On 24 May 2002 on the application of the native title party the listings hearing set down for 27 May 2002 was adjourned until 4 June 2002,
At the listings hearing I heard submissions from the parties and determined to dismiss the present proceedings under s.148(b) of the Act, the native title party not having proceeded with the objection application within a reasonable time and having indicated its inability to comply at any time in the future with the directions made by the Tribunal on 31 January 2002.
I wish to take this opportunity to make the following observations in relation to the circumstances in which the present objection came before me for dismissal. It is becoming a not uncommon occurrence that objections come before the Tribunal for dismissal in the manner in which the present objection came to be dismissed and it is in my view appropriate for me to reiterate what Member Sosso said in Roy Dixon, Gordon Lansen, Les Hogan/Northern TerritorylAshton Mining Ltd and North Mining Ltd, DO01/140, DO02/16-17, DO02/20 and 27, 15 April, 2002, unreported at [12]:
"Obviously the preferable course of action would have been the withdrawal of the various objections. 1 was informed that this course was not followed as there were no instructions from the Objectors to do so. Likewise there were no prospects that the Tribunal would be provided a written request to dismiss the objections pursuant to s.149. "
Either of the courses referred to by Member Sosso are preferable courses for the native title party to pursue if the native title party finds itself in the position of being unable to comply with Tribunal directions. I consider that those courses are preferable because, in the circumstances of the present dismissal, if either had been pursued they would have obviated at the very least the expenditure of Tribunal and parties' resources on today's hearing and the preparation and provision by the Tribunal of a formal dismissal determination. I take this opportunity to encourage the native title party's legal representatives to consider adopting a procedure whereby at an earlier stage than 7 days before the first compliance listings hearing (that is after the government party's contentions have been filed and one day before the grantee party's are to be filed) it might assess the question of whether it will be able to prosecute the particular objection to determination and take instructions to pursue one or other of the preferred courses action if the objection cannot be pursued. The adoption of such a procedure, especially if it could be effected as early as possible in the proceedings, would reduce the burden on the resources of all parties and the Tribunal in such cases. I note that I make these comments only by way of suggestion and appreciating that the native title party's legal representatives have informed the Tribunal that they operate under their stated resources constraints.
Decision
The objection application in respect of ELA 22551 is dismissed pursuant to s.148(b) of the Native Title Act 1993 (Cth).
Mrs Jennifer Stuckey-Clarke
Member
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