Gabriel Hazelbane & Ors on behalf of the Wagiman, Warai and Jawoyn Peoples (DC01/6)/Gabriel Hazelbane & Ors on behalf of the Warai and Angwinmil Peoples (DC01/21)/Northern Territory/McCleary Exploration & Mining Pty Ltd

[2002] NNTTA 237

NATIONAL NATIVE TITLE TRIBUNAL

Gabriel Hazelbane & Ors on behalf of the Wagiman, Warai and Jawoyn Peoples (DC01/6)/Gabriel Hazelbane & Ors on behalf of the Warai and Angwinmil Peoples (DC01/21)/Northern Territory/McCleary Exploration & Mining Pty Ltd, [2002] NNTTA 237 (19 November 2002)

Application No: DO02/80 and DO02/81

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

-and-

IN THE MATTER of an inquiry into an expedited procedure objection application

Gabriel Hazelbane & Ors on behalf of the Wagiman, Warai and Jawoyn Peoples (DC01/6)

and

Gabriel Hazelbane & Ors on behalf of the Warai and Angwinmil Peoples (DC01/21) (native title parties)

-and-

The Northern Territory of Australia (Government party)

-and-

McCleary Exploration & Mining Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Darwin
Date:  15 November 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) s 148(b)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On the 15 May 2002, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence ELA23237 to McCleary Exploration & Mining Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 16 September 2002, Gabriel Hazelbane & Ors on behalf of the Warai and Angwinmil Peoples – DC01/21 (DO02/80), and Gabriel Hazelbane & Ors on behalf of the Wagiman, Warai and Jawoyn Peoples – DC01/6 (DO02/81) (‘the native title parties’) each made an expedited procedure objection application to the Tribunal.

Relevant Facts

1. On 25 September 2002, the Tribunal issued directions for the purposes of conducting an inquiry into the expedited procedure objection applications.  These directions were in the standard form which allows for a 16 week period of negotiations to see if agreement can be reached between the parties on the grant of the tenement before the filing of contentions and documents is required.

2. On 23 September 2002, the grantee party’s representative, Mr John Goulevitch for McCleary Exploration and Mining Pty Ltd, made submissions to the Tribunal as follows:

   ‘As there is no agreement in place and no likelihood of negotiations with the Northern Land Council in regards to a Native Title Access/Compensation Agreement in respect of this title, we request that the 16 week negotiation period be dispensed with in favour of a four week period for the first party to present contentions.’

3. On 10 October 2002, I convened a Preliminary Conference and sought submissions from the parties in relation to the grantee party’s request for shortened directions.  After consideration of the issues raised by both the native title party and the grantee party, I issued shortened directions which required the Government party to provide its contentions and documents by 1 November 2002, those of the native title parties by 8 November 2002 and the grantee party by 15 November 2002.

4. On 1 November 2002, the Government party filed its statement of contentions as required by Direction (1) and on 4 November 2002, Mr Mark Rumler, Solicitor representing the native title parties advised the Tribunal;

   ‘We refer to these matters and to the shortened directions made herein.

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

5. On 5 November 2002, the Government party submitted that the directions should be amended to provide for dismissal of the objections if the native title parties did not comply by the required dated.  The grantee party supported the Government party’s submission and the native title party did not object.  On 6 November 2002 the directions were amended to provide that if the native title parties did not comply with directions by the close of business on 8 November 2002 ‘the application shall be dismissed’.

Decision

1. The native title parties have failed to comply with the direction by the Tribunal and accordingly the objection applications in respect of exploration licence ELA 23237 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
15 November 2002