Gabriel Hazelbane & Ors on behalf of the Warai and Angwinmil Peoples – DC01/21; Jacky Green & Leslie Hogan on behalf of the Yanyuwa, Kurdanji and Garawa People – DC01/50; Kathleen Parry & Ors for the Wagiman,
[2002] NNTTA 240
•22 November 2002
NATIONAL NATIVE TITLE TRIBUNAL
Gabriel Hazelbane & Ors on behalf of the Warai and Angwinmil Peoples – DC01/21; Jacky Green & Leslie Hogan on behalf of the Yanyuwa, Kurdanji and Garawa People – DC01/50; Kathleen Parry & Ors for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples – DC01/28/Northern Territory/Trevor Tennant; Astro Mining NL; Southdale Holdings Pty Ltd, [2002] NNTTA 240 (22 November 2002)
Application No: DO02/59, DO02/60, DO02/61
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 Warai and Angwinmil Peoples – DC01/21 (native title party)
-and-
Jacky Green & Leslie Hogan on behalf of the Yanyuwa, Kurdanji and Garawa People – DC01/50 (native title party)
-and-
Kathleen Parry & Ors for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples – DC01/28 (native title party)
-and-
The Northern Territory of Australia (Government party)
-and-
Trevor Tennant (grantee party)
-and-
Astro Mining NL (grantee party)
-and-
Southdale Holdings Pty Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: Mrs Jennifer Stuckey-Clarke
Place: Sydney
Date: 22 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) s148(b).
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS
Background
On 6 March 2002, the government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant ELA22856 to Trevor Tennant in respect of DO02/59, ELA 22351 to Astro Mining NL in respect of DO02/60, and ELA 23106 to Southdale Holdings Pty Ltd in respect of DO02/61(“the grantee parties”) and included in the Notices a statement that it considered that the grant attracted the expedited procedure in each matter.
On 8 July 2002, Gabriel Hazelbane & Ors on behalf of the Warai and Angwinmil Peoples (‘the native title party’) made an expedited procedure objection application to the Tribunal in respect of ELA 22856.
On 8 July 2002, Jacky Green & Leslie Hogan on behalf of the Yanyuwa, Kurdanji and Garawa Peoples (“the native title party”) made an expedited procedure objection application to the Tribunal in respect of ELA 22351.
On 8 July 2002, Kathleen Parry & Ors on behalf of the Wagiman, Ngangiwumeri, Malak Malak and Kamu Peoples (“the native title party”) made an expedited procedure objection application to the Tribunal in respect of ELA 23106.
Relevant Facts
On 12 July 2002, Deputy President Sumner issued the following directions to the parties in relation to these matters;
On or before 24 October 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 31 October 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 7 November 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 14 November 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 14 November 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).
On 1 October 2002 I was appointed the member to conduct the inquiries and on 24 October 2002, the Government Party complied with Direction (1).
On 28 October 2002, the native title party wrote to the Tribunal;
“We advise we have been unable to date 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”
On 28 October 2002, the Tribunal received an email from Mr Bichard, representing the grantee party in DO 02/59 requesting advice about the directions and whether in the light of the advice of non compliance whether the grantee was still required to file and serve its contentions pursuant to Direction (3).
On 28 October 2002, the government party wrote to the Tribunal making an application for dismissal of all three matters pursuant to s.148(b) of the Native Title Act1993 (Cth) (“the Act”). The letter stated:
“The Northern Territory hereby makes application for the abovementioned objection applications to be dismissed pursuant to s148(b) NTA.
In DO01/138 (George King/NT/May and 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]).
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 is no reasonable prospects in the future for doing so within a reasonable time.” Compliance is due on Thursday of this week and in the event that the filing and serving of the Objector’s contentions does not occur on 31 October, Member Sosso’s statement is enlivened.
In these now routine circumstances – amounting effectively to a withdrawal of the objection – The setting down of a Listing Hearing may be unnecessary. However, should the Tribunal or any other party wish to proceed to a Listing Hearing, the Territory is happy to attend.”
On 4 November 2002, the Tribunal issued the following directions to the party in each matter:
“In light of the correspondence received from the Northern Land Council dated 28 October 2002 in these matters the directions requiring grantee party compliance are varied. The grantee party is not longer required to file contentions until further notice.”
On 13 November 2002, the government party forwarded the following correspondence to the Tribunal by email;
In each of the above matters, Replies are due to be filed and served tomorrow 14 November. However, as the Objector in each matter has not filed materials, and Mr Rumbler indicated that would be the case and the Territory responded with applications to dismiss, the Territory and the respective grantee has nothing to respond to.
The directions were amended to relieve the Grantee from filing contentions on 7 November 2002, but did not address this reply stage.
Could you provide some guidance please?
On 14 November 2002, the Tribunal forwarded the following email advice to the parties:
“The Member advises that the government Party is not required to file and serve in these matters. Since the Native Title Party have not filed any material there is nothing to reply to”.
On 21 November 2002, a listing Hearing was convened at which I dismissed forthwith the matters for non-compliance with directions under s.148(b) of the Act.
Decision
The applicants have failed to comply with directions of the Tribunal and have indicated an inability to comply “within a reasonable time” in their letters of 28 October 2002. Accordingly the objection applications in respect to ELA 22856, ELA 22351 and ELA 23106 are dismissed pursuant to s 148(b) of the Act.
J.E.Stuckey-Clarke
Member
22 November 2002.
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