Billy Coolibah & Ors on behalf of the Gurdanji and Garawa People (DC00/27) and Sweeney Swanson on behalf of the Gurdanji and Garawa People (DC02/14)/ Northern Territory/Astro Mining Nl

[2002] NNTTA 246

NATIONAL NATIVE TITLE TRIBUNAL

Billy Coolibah & Ors on behalf of the Gurdanji and Garawa People (DC00/27) and Sweeney Swanson on behalf of the Gurdanji and Garawa People (DC02/14)/ Northern Territory/Astro Mining NL, [2002] NNTTA 246 (3 December 2002)

Application No: DO02/69 and DO02/70

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

-and-

IN THE MATTER of an Inquiry into an expedited procedure objection applications

Billy Coolibah & Ors on behalf of the Gurdanji and Garawa People – DC00/27 (native title party)

-and-

Sweeney Swanson on behalf of the Gurdanji and Garawa People – DC02/14 (native title party)

-and-

The Northern Territory of Australia (Government party)

-and-

Astro Mining NL (Grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Jennifer Stuckey-Clarke
Place:  Darwin
Date:  3 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 the 3 April 2002, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant ELA23116 and ELA23117 to Astro Mining NL (‘the grantee party’) and included in the Notice a statement that it considered that the grant attracted the expedited procedure.

1. On 6 August 2002, Billy Coolibah & Ors on behalf of the Gurdanji and Garawa People (‘the native title party’) (DC00/27), and Sweeney Swanson on behalf of the Gurdanji and Garawa People (‘the native title party’) (DC02/70), made expedited procedure objection applications to the Tribunal in respect to ELA 23116 and ELA 23117.

Relevant Facts

1. On 8 August 2002, Deputy President Sumner issued the following directions to the parties in relation to these matters;

   (1)        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.

2. 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.

3. 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.

4. On or before 12 December 2002 each party may reply to the contentions made pursuant to Directions (1), (2) and (3).

5. A listing hearing (if necessary) will be held on 12 December 2002.

6. Liberty is given to apply to vary these directions or for a relisting of this hearing.

7. 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).

1. On 29 October 2002, I was appointed the member to conduct the inquiries and on 21 November 2002, the Government Party provided its Statement of Contentions, in accordance with Direction (1).

1. O28 November 2002, Mark Rumler, Solicitor for the native title party wrote to the Tribunal advising an inability to comply with direction (2) as follows;

   “We advise we have been unable to date to obtain sufficient instruction for the purposes of taking affidavit evidence in both these matters and that there are no reasonable prospects in the future for doing so within a reasonable time.”

1. On 28 November 2002, Solicitor for the Government Party, Mr Nicholas Papandonakis provided the Tribunal with the following submission by email;

   The Northern Territory of Australia hereby makes application for the above mentioned objection applications to be dismissed pursuant to s.148(b) of the NTA.

As you will be 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 for doing so within a reasonable time".

In DO01/138 (George King/NT/BS May & PR Jones, 3 May 2002) Member Sosso stated; "When 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 ( DO02/69-70 on 3 December 2002; DO02/68 on 19 December 2002) and dismiss the applications forthwith.

However, in the event that the Tribunal requires that they proceed, we would of course attend.  I do, however, remind the Tribunal of our previous correspondence regarding the timing of the Listing Hearing in DO02/68.

1. On 28 November 20902, Mark Rumler, Solicitor representing the native title party advised the Tribunal and the parties;

   “We do not in these circumstances object to the application belo9w for dismissal pursuant to s 148(b) and we also submit that in these circumstances it would be appropriate for the lisitng hearings planned to be dispensed with”.

1. On 3 December 2002, a Listing Hearing was convened.

Conclusion

1. The Government party has sought to have the matters dismissed for failure to comply with a direction of the Tribunal under s.148 (b) of the Act. The native title party has not opposed dismissal of the objection application on that basis.

Decision

The applicant (native title party) has failed to comply with a Direction by the Tribunal and notified the Tribunal of its inability to comply within a reasonable time and accordingly the objection applications in respect of ELA23116 and ELA23117 are dismissed pursuant to s 148(b) of the Act.

J E STUCKEY –CLARKE
Member