Carl Inkamala and Others on behalf of Tyurete-arenye Western Arrernte people (DC01/47)/Northern Territory/Johnson’s Well Mining Nl

[2002] NNTTA 42

NATIONAL NATIVE TITLE TRIBUNAL

Carl Inkamala and Others on behalf of Tyurete-arenye Western Arrernte people (DC01/47)/Northern Territory/Johnson’s Well Mining NL, [2002] NNTTA 42 (9 April 2002)

Application Nos:      DO01/73 and DO01/74

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

Carl Inkamala and Others on behalf of Tyurete-arenye Western Arrernte people (DC01/47) (Native Title Party)

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Northern Territory of Australia (Government Party)

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Johnson’s Well Mining NL (Grantee Party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Darwin
Date:  9 April 2002

Catchwords:     Native Title – future act – proposed grant of exploration licences – expedited procedure objection applications – application for exploration licences subsequently refused by Government party – objection applications dismissed.

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

Cases:Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467

Solicitor for the

native title party:                 Mr Greg Borchers, Central Land Council

Solicitor for the                   

Government party:             Mr Daniel Lavery and Mr Matthew Storey, Solicitor for the Northern Territory

Representative of the

grantee party:  Mr Russell Hetherington, Hetherington Exploration & Mining Title Services P/L

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 2 May 2001, the Northern Territory (‘the Government party’) gave notice pursuant to s 29 of the Native Title Act 1993 (‘the Act’) of its intention to grant exploration licence EL10275 and EL10277 to Johnson’s Well Mining NL (‘the grantee party’) and included a statement that it considered that these future acts attracted the expedited procedure.

2. On 29 August 2001, Carl Inkamala and Ors on behalf of Tyurete-arenye Western Arrente people (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to each exploration licence (DO01/73 - EL10275 and DO01/74 - EL10277).

3. In accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure was attracted.  A listing hearing was scheduled for 3 April 2002.

4. Prior to the listing hearing the Tribunal was informed that the Government party no longer intended to grant the exploration licences (letter to Ian Williams, State Manager of the Tribunal in the Northern Territory from MA Errity, Principal Registrar, Titles Division dated 28 March 2002).  By E-mail to the Tribunal, dated 2 April 2002, which was copied to the other parties, Jerry Whitfield of the Department of Business, Industry and Resource Development confirmed that the exploration licence applications had been refused by the Government party and that the grantee party had been informed of this by letter signed by the responsible Minister.

5. At the listing hearing on 3 April 2002, counsel for the Government Party (Mr Lavery) confirmed that the applications for grant of the exploration licences were refused.  The refusal was based on a policy decision taken at Cabinet level prohibiting ‘for the immediate future’ any application for exploration over the West MacDonnell National Park, where the proposed tenements were located.  I advised the parties that I intended to act on the basis of the evidence that the Government party no longer proposed to do the future acts in question.  That is, that there was no future act before the Tribunal which enlivened its jurisdiction to conduct an inquiry and make a determination.  I advised the grantee party that I would not be making the decision immediately and that any issue it had about whether the Government party intended to do the act should be taken up with the Government.  I have received no further submissions on the issue from the grantee party and as indicated at the hearing I intend to proceed on the basis, as the evidence establishes, that there is no future act before the Tribunal.  The law is clear that the Tribunal has no jurisdiction to conduct an inquiry and make a determination where for whatever reason there is no future act proposed (Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467).

Request for adjournment

1. The grantee party requested an adjournment of the application for 30 days to enable it to obtain information from the Minister about the refusal and to consider whether to take proceedings in ‘an appropriate administrative tribunal’.  If administrative review proceedings were taken, the matter should be further adjourned pending the outcome of them.  The grantee party submitted that this would maintain the status quo and preserve all parties’ rights.  The objections would still be in place and the inquiry could proceed if the proposal to grant was reinstated.

2. The Government party opposed the adjournment and said that because the Tribunal had no jurisdiction in relation to the matter, the objection applications should be dismissed in accordance with the Tribunal’s usual practice. The Government party conceded that if administrative review proceedings resulted in a reinstatement of the proposal to grant the exploration licences then the s 29 notice would need to be given again in order to ensure that the right to negotiate provisions of the Act were complied with and the grant validly made. The grantee party said that this would delay the grant because there would be another 4 months notification period and the possibility of objections from other claimants being lodged. The native title party would also be required to re-lodge the objections.

3. Despite the potential inconvenience involved if the proposal to grant is reinstated, there is no basis for granting the adjournment.  The Tribunal does not have jurisdiction to conduct any further proceedings and I am required to dismiss the objection.  Although I am not aware of the basis for any potential challenge to the decision not to grant the application or the likelihood of success of it I note that it is based on a Cabinet decision.  This suggests that there would be little practical utility in granting an adjournment even if there was power to do so as it is unlikely that the grantee party will be able easily to resolve its issues with the Government party.

Decision

1. There is no longer any proposal from the Government party to do a future act and accordingly the objection application is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
9 April 2002