Arthur Que Noy, Gabriel Hazelbane, Paddy Huddleston & Marjorie Foster on behalf of the Wagiman, Warai and Kamu Peoples/Northern Territory/Julia Gold Pty Ltd
[2002] NNTTA 245
•2 December 2002
NATIONAL NATIVE TITLE TRIBUNAL
Arthur Que Noy, Gabriel Hazelbane, Paddy Huddleston & Marjorie Foster on behalf of the Wagiman, Warai and Kamu Peoples/Northern Territory/Julia Gold Pty Ltd, [2002] NNTTA 245 (2 December 2002)
APPLICATION NO: DO 02/68
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
ARTHUR QUE NOY, GABRIEL HAZELBANE, PADDY HUDDLESTON & MARJORIE FOSTER on behalf of the Wagiman, Warai and Kamu Peoples (native title party)
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THE NORTHERN TERRITORY OF AUSTRALIA (government party)
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JULIA GOLD PTY LTD (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Mr John Sosso
Place: Brisbane
Date: 2 December 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
[1] On 3 April 2002, the government party gave notice under section 29 of the Native Title Act 1993 (Cth) of its intention to grant Exploration Licence Application (ELA) 23509 to Julia Gold Pty Ltd (‘grantee party’) and included a statement that the government party considered the grant attracted the expedited procedure.
[2] On 6 August 2002, Arthur Que Noy, Gabriel Hazelbane, Paddy Huddleston and Marjorie Foster on behalf of the Wagiman, Warai and Kamu Peoples lodged with the Tribunal a Form 4 (Objection to inclusion in an Expedited Procedure Application).
Relevant Facts
[3] On 8 August 2002, Deputy President Sumner issued the following directions to the parties in the expedited procedure objection application;
On or before 21 November 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.
On or before 28 November 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
· 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 5 December 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 12 December 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 12 December 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).
[4] On 29 October 2002, Deputy President Sumner appointed me as the Member to constitute the Tribunal for the purpose of this expedited procedure objection inquiry.
[5] In accordance with the Directions, the government party lodged a Statement of Contentions on 21 November 2002.
[6] On 28 November 2002, Mr Mark Rumler, Solicitor representing the native title party advised the Tribunal as follows:
“We advise we have been unable to date to obtain sufficient instruction for the purposes of taking affidavit evidence in this matter and that there are no reasonable prospects in the future for doing so within a reasonable time.”
[7] On 28 November 2002, Mr Nicholas Papandonakis, on behalf of the government party, submitted that the expedited procedure objection be dismissed for the following reasons:
“As you are aware, Direction 2 of the Directions made in all three matters required the Native Title Party to file its materials by 28 November 2002. Yesterday’s correspondence from the Northern Land Council under the hand of Mr Rumler, speaks of an inability to ‘obtain sufficient instruction for the purposes of taking affidavit evidence in these matters and that there are no reasonable prospects in the future of doing so with a reasonable time.
In DO01/138 (George King/NT?BS May & PR Jones, 3 May 2002) Member Sosso stated; ‘Where the Tribunal is confronted with a situation where a native title party is in breach of directions made, and indicates an unpreparedness or inability to remedy that breach and comply with the Directions, then there is proper scope for the tribunal to dismiss the application pursuant to section 148(b)’ (at [10])
It is submitted that given the facts in this matter, there is proper scope for the Tribunal to dismiss these applications pursuant to section 148(b) of the NTA.
Given the status of these matters, the Northern Territory would request that the Tribunal dispense with the planned Listing Hearings … and dismiss the applications forthwith.”
[8] On the same day Mr Rumler replied in the following terms:
“We do not in these circumstances object to the application for dismissal pursuant to s 148(b) and we also submit that in these circumstances it would be appropriate for the listing hearings planned to be dispensed with.”
[9] 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 comply with a Direction of the Tribunal. In this instance the native title party informed the Tribunal that there are no prospects of it complying with the Directions in this matter within a reasonable period of time, and in such circumstances it is appropriate to dismiss the application. Moreover, the native title party has also expressly indicated that it would not object to this course of action.
[10] As the native title party has failed to comply with Direction (2) issued on 8 August 2002, namely to provide to the Tribunal and other parties its statement of contentions and related documents, and there are no reasonable prospects of that failure to comply being remedied in the near future, it is appropriate that the expedited procedure objection application be dismissed pursuant to section 148(b).
Decision
The native title party has failed to comply with a Direction of the Tribunal and accordingly the expedited procedure objection application in relation to ELA 23509 is dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth).
Mr John Sosso
Member
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