Billy Coolibah & Others (DCO0/27)/Northern Territory/Ashton Mining Ltd

[2002] NNTTA 160

NATIONAL NATIVE TITLE TRIBUNAL

Billy Coolibah & Others (DCO0/27)/Northern Territory/Ashton Mining Ltd, [2002] NNTTA 160 (8 August 2002)

Application No:        DO01/93

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

Billy Coolibah & Others (DCO0/27) (native title party)

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The Northern Territory of Australia (Government party)

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Ashton Mining Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:       Mrs Jennifer Stuckey-Clarke
Place:             Sydney
Date:              08 August 2002

Catchwords:  Native title – future act –proposed grant of exploration licence expedited procedure objection application – objection application not accepted – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) s 148(a)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Factual Background

1. On 30 May 2001, the Government party gave notice under s29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant ELA22101 (‘the proposed tenement’) to Ashton Mining Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

1. On 1 October 2001, Billy Coolibah & Ors (’the native title party’) for the native title claim group in Native Title Claim DCO0/27 (‘the native title claim’), made an expedited procedure objection application to the Tribunal.

1. On 5 November 2001 Deputy President Sumner, acting in his capacity as delegate of the President of the Tribunal, appointed me to constitute the Tribunal for the purpose of this expedited procedure inquiry.

1. On 12 October 2001 Deputy President Sumner had made directions in relation to the inquiry. Those directions were subsequently followed by all parties to the inquiry. I issued further directions at various listing hearings, the last of which was convened on 19 April 2002. At that hearing all parties confirmed that none of them objected to my proceeding to determining the matter on the papers. I determined that, having considered the material lodged with the Tribunal, I was able to do so pursuant to section 151 of the Act and on 16 May 2002 made a direction that the matter should proceed forthwith to a determination on the papers. In accordance with usual practice, in July 2002, I was provided with a map prepared by the Geospatial Unit of the Tribunal showing the geographical position of the proposed tenement in relation to the land subject to the native title claim. That map revealed no overlap at all and I then sought clarification by way of the schedule as to the extent of any overlap. Those schedules confirmed that there was no overlap between the proposed tenement and the land subject to the native title claim, that is, that the area of the proposed tenement was not encompassed by the native title claim.

1. Accordingly, on 30 July 2002, the Tribunal sent the parties the following letter enclosing documentation including a map provided by the Tribunal’s Geospatial Unit:

DO01/93Billy Coolibah and Ors (DCO0/27) & Ashton Mining Ltd (EL/22101)

I enclose a copy of a map prepared by the Tribunal in relation to this matter, as well as schedules prepared by the Geospatial Unit of the Tribunal which the Member has before her. The Member intends to determine this matter as soon as possible but wishes to give all parties the opportunity to make submissions by 5pm on Monday, 5 August, 2002 in relation to the information contained in the map and schedules.

The Member advises the parties that this information raises questions as to the jurisdiction of the Tribunal to entertain the objection and if submissions are not received, she intends to determine that question as a threshold issue in her determination.

1. On 2 August 2002, Mr Rumler of the NLC, the legal representative of the native title party telephoned Ms Cowley, the case manager for these proceedings, and sought clarification as to what the Member meant by “questions as to the jurisdiction to entertain the objection”.

1. On 2 August 2002 the Tribunal sent a letter to the native title party and also provided copies of it to the other parties, which stated:

   DO01/93 and DO01/94 matters

   I refer to your query of 2 August 2002. The Member advises that she has placed the material before you and has sought submissions from you, in respect of its effect. The Member is of the view that on the basis of this material the Objections are both nullities.The Member affords you the opportunity to make any submission you wish in relation to the material, by 10am on Tuesday 6 August 2002.

You are at liberty to seek to relist the matter but the Member sees at this stage of the proceedings, no need to do so. She is prepared to consider any submission you may wish to make in relation to the material.

The Member directs that any further communications in relation to this matter should be made by you in writing transmitted simultaneously to all other parties and not by way of telephone conversation with me.

You are reminded of the directions that have been given in relation to the conduct of these proceedings.

1. On 1 August 2002, Mr Lavery for the government party sent the following email to the Tribunal:

Thank you for the correspondence dated 30 July on both of the above matters. Based on the information provided, the objector in each matter is not a 'native title party' within s.30(1)(a)(ii) NTA and the 'objection' application should therefore, in our submission, be dismissed pursuant to s.148(a).

1. On 2 August 2002 Mr Rumler sent the following email to the Tribunal:

On the basis of your advice below we have no submissions to make in relation to the matters.

1. On 6 August 2002, Mr Jeff Wilkie for the grantee party sent the following email:

   Thank you for your correspondence regarding DO01/93 and DO01/94 dated 30 July 2002.  Rio Tinto (on behalf of Ashton Mining Ltd) has no further submission to make in these matters and will rely on the Member’s determination.

Decision

1. It is established on the evidence before me that the land the subject of the native title claim does not overlap to any extent at all with the area of the proposed tenement.  Submissions have been sought from the native title claim group on this issue and none have been forthcoming.

1. In these circumstances, I find that the purported objectors do not fall with the definition of “native title party” in section 30(1)(a) of the Act. Thus, they cannot lodge a valid objection under s.32(2) to the inclusion of the statement that the grant of the proposed tenement attracts the expedited procedure in the section 29 notice. Therefore, I determine that the purported objection is incapable of acceptance by the Tribunal under s.77 of the Act and as the Member conducting this inquiry I refuse to accept it: see Northern Territory/Ben Ward & Ors/Ashton Exploration Australia Pty Ltd,  unreported , DO01/3; DO01/13; DO01/19-23, 21 December 2001, at [25]-[26] where Member Sosso said:

[25] Accordingly, as a matter of statutory interpretation, when section 77 refers to the Tribunal accepting expedited procedure objection applications, it is referring to the Member presiding over that inquiry. It is not a reference to the Registrar or staff of the Tribunal, because the Act was specifically amended to delete the reference to the Registrar and replace it with a reference to the Tribunal. As indicated, the Act is drafted in such a way that the Tribunal is constituted for the purposes of a specific or general inquiry by the Member of Members presiding. Consequently, when a Member appointed to conduct an inquiry stops being a Member or becomes unavailable “the President must direct another member or members to constitute the Tribunal for the purposes of finishing the inquiry” – section 125(2).

[26] In conclusion, the Act draws a distinction between the management of the administrative affairs of the Tribunal (Division 4 of Part 6) and the conduct on inquiries. The Tribunal is constituted by Members for such inquiries, and only those Members are empowered to carry out the statutory functions reposed on the Tribunal by the Act. Thus when the Act requires the Registrar or staff of the Tribunal to carry out a task it makes a distinction between the duties of the Registrar or staff of the Tribunal and that of the Tribunal constituted by Members. In this regard, section 76 provides than an expedited procedure application must be given to the Registrar, but section 77 requires the Tribunal (ie. the presiding Member) to accept that application if it complies with section 76. There is a clear dichotomy of functions. The Registrar and his staff have the administrative task of receiving and dealing with applications and the prescribed documents and fees. The presiding Member has the task of determining if there has been compliance with the Act and therefore either accepting the application or rejecting it.

1. Therefore, I determine that the application should be dismissed pursuant to s.148(a) of the Act which provides:

The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

(a)the Tribunal is satisfied that it is not entitled to deal with an application.

J.E. Stuckey-Clarke

Member