Arthur Que Noy and Ors on behalf of the Wagiman, Warai and Kamu Peoples (DC01/23)/Northern Territory/Biddlecombe Pty Ltd
[2002] NNTTA 165
•13 August 2002
NATIONAL NATIVE TITLE TRIBUNAL
Arthur Que Noy and Ors on behalf of the Wagiman, Warai and Kamu Peoples (DC01/23)/Northern Territory/Biddlecombe Pty Ltd, [2002] NNTTA 165
(13 August 2002)
Application No: DO02/47
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an Inquiry into an expedited procedure objection application
Arthur Que Noy and Ors on behalf of the Wagiman, Warai and Kamu Peoples (DC01/23) (native title party)
-and-
The Northern Territory of Australia (Government party)
-and-
Biddlecombe Pty Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Mr John Sosso
Place: Brisbane
Date: 13 August 2002
Hearing Dates: 13 August 2002
Government Party: Mr Daniel Lavery, Solicitor for Northern Territory
Native Title Party: Mr Angus Frith of Counsel instructed Mr Mark Rumler of the Northern Land Council
Grantee Party: Mr Ross McColl
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) ss 29, 32, 148(b).
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On the 12 December 2001, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant EL/23105 to Biddlecombe Pty Ltd (‘the grantee party’) and included in the Notice a statement that it considered that the grant attracted the expedited procedure.
On 12 April 2002, Arthur Que Noy and Ors on behalf of the Wagiman, Warai and Kamu Peoples (‘the native title party’) made an expedited procedure objection application to the Tribunal.
Relevant Facts
On 16 April 2002, Deputy President Sumner appointed me as the Member to constitute the Tribunal for the purposes of the Inquiry into the expedited procedure objection application.
On 17 April 2002, the Tribunal issued the following Directions to the parties:
(1) On or before 2 August 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 area and location of the licence/s and the location of registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989 on or within the vicinity of the sites; and
iiboundaries of various tenures of land within or overlapping the boundaries of the tenement/s 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.
On or before 9 August 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
· 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)a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
On or before 16 August 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, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
On or before 23 August 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 23 August 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).
On 2 August 2002, in conformity with the Directions, the government party filed and served a Statement of Contentions and related documents.
On 9 August 2002, Mr Mark Rumler, the solicitor for the native title party, wrote to the Tribunal in the following terms:
Expedited Procedure Objection Enquiry – DO 02/47 (ELA 23105)“We refer to this matter.
We advise we have been unable to date to obtain sufficient instruction for the purposes of taking affidavit evidence in these matters and there is are no reasonable prospects in the future for doing so within a reasonable time.”
On 12 August 2002, Mr Daniel Lavery, on behalf of the government party, made the following submissions:
‘Correspondence in this matter from the Northern Land Council of 9 August 2002, under the hand of Mr Mark Rumler, speaks of an inability to "obtain sufficient instruction for the purposes of taking affidavit evidence in these matters (sic) and there are no reasonable prospects in the future for doing so within a reasonable time."
Pursuant to Directions in this matter, the Objector was to file and serve contentions by the date of the letter. In these circumstances and where withdrawal is not offered, the Territory applies for this objection application to be dismissed pursuant to s.148(b)NTA.”
On 13 August 2002 I convened a Listings Hearing and each of the parties addressed the Tribunal. Mr Frith indicated that there were no immediate prospects that the native title party would comply with the above Directions. Further, he indicated that he had no instructions to oppose the government party’s submission that the expedited procedure objection application be dismissed pursuant to section 148(b).
Section 148(b) empowers the Tribunal to dismiss an application at any stage of an inquiry if the applicant fails within a reasonable time to either proceed with the application or to comply with a direction by the Tribunal. In this case only a very short period of time has elapsed since the date mandated in the Directions for the native title party to provide to the Tribunal and each of the other parties its Contentions and related documents. In the normal course of events if a party has not complied with Directions in such a manner and indicates a preparedness to comply within a reasonable period of time, dismissal pursuant to section 148(b) would not be the appropriate course of action. In this instance, however, the native title party has acted promptly in informing the Tribunal and the other parties that there are no immediate prospects that it can or will comply with the Directions. When the Tribunal is advised that a party, for whatever reason, cannot or will not comply with Directions, then this provides a proper basis for dismissal. Having regard to the submissions of the government party, and the position of the native title party, I formed the view that dismissal pursuant to section 148(b) was the correct course of action.
Decision
The expedited procedure objection application by Mr Arthur Que Noy & Ors on behalf of the Wagiman, Warai and Kamu Peoples to the grant of Exploration Licence 23105 to Biddlecombe Pty Ltd is dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth).
John Sosso
Member
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