Gabriel Hazelbane & Other on behalf of the Warai and Angwinmil Peoples/Northern Territory/Softwood Plantation Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Gabriel Hazelbane & Other on behalf of the Warai and Angwinmil Peoples/Northern Territory/Softwood Plantation Pty Ltd, [2003] NNTTA 19 (12 February 2003)

Application No: DO02/77

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-

The Northern Territory of Australia (Government party)

-and-

Softwood Plantation Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Darwin
Date:  12 February 2003

Catchwords: Native title – future act – proposed grant of exploration licence expedited procedure objection application – failure to comply with Directions – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) s148(b).
Cases:Kathleen Parry & Others for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples/Northern Territory/Troy Resources NL, [2003] NNTTA 18 (12 February 2003)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On the 1 May 2002, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence ELA22301 to Softwood Plantation Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

On 2 September 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.

Relevant Facts

On 6 September 2002, the Tribunal issued directions for the purposes of conducting an inquiry into the expedited procedure objection application. 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.
On 26 September 2002 a Preliminary Conference was convened during which the Northern Land Council, representing the native title party, requested that directions made on 6 September 2002 be amended to allow for a wet season lay-off period. The Government and grantee parties did not oppose this request. I amended the directions by requiring that the Government party provide its contentions and documents by 10 February 2003, those of the native title party by 17 February 2003, those of the grantee party by 24 February 2003 and Replies from all parties by 3 March 2003.
On 6 February 2003 the Tribunal received the following advice from Mr Mark Rumler of the Northern Land Council:
‘I confirm that in relation to the matter, the Native Title Party will not be filing contentions by the current due date of 17 February 2003 and that it does not seek an extension of time within which to do so.
I assume therefore that the Tribunal will deal with the Objections accordingly. Should the Tribunal consider excusing the other parties from further compliance with directions and dismissing the Objection application, the Native Title Party does not seek to be heard.’
On 6 February 2003 the Tribunal received the following request from the Government party:
‘It is evident from the letters dated 6 February 2003 that the Native Title Party will not be prosecuting these matters any further and therefore the Government Party seeks that the objection be dismissed pursuant to s.148(b) NTA …’

In separate correspondence received on the same date the Government party also requested:

‘I note that our contentions are due to be filed by close of business 10 February 2003. In the circumstances, the Territory requests that it be exempted from compliance with the directions requiring the filing of any contentions in these matters.’

On 10 February 2003 I exempted the Government party from the requirement to provide their contentions and documents by 10 February 2003. On the same day the Tribunal received advice from the grantee party that they supported the Government party’s application for dismissal.
An objection application may be dismissed forthwith pursuant to s 148(b) of the Act for failure to comply with directions where a native title party has advised of its intention not to comply even though the date for compliance has not passed. (See cases cited in Kathleen Parry & Others for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples/Northern Territory/Troy Resources NL, [2003] NNTTA 18 (12 February 2003) at [8]).

Decision

The native title party has informed the Tribunal that it does not intend to comply with the Tribunal’s direction to provide its contentions and documents by 17 February 2003 or at all. Accordingly the objection application in respect of exploration licence ELA22301 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
12 February 2003

The case before the Federal Court involved the Warai and Angwinmil Peoples, represented by Gabriel Hazelbane, who sought to object to the grant of an exploration licence for a softwood plantation by the Northern Territory to Softwood Plantation Pty Ltd. The dispute centred on the potential impact of the plantation on the native title rights of the Warai and Angwinmil Peoples. The objection was lodged under the expedited procedure provisions of the Native Title Act 1993 (Cth). The court was tasked with determining whether the objection application complied with the procedural requirements set out in the Act and the directions of the court.

The primary legal issues before the court were whether the objection application complied with the procedural requirements of the Native Title Act and whether the applicants had demonstrated a reasonable likelihood of establishing a future act that would infringe upon their native title rights. Specifically, the court had to consider whether the applicants had provided sufficient evidence to support their claim that the proposed plantation would affect their native title rights and whether they had adhered to the procedural directions issued by the court. The court also needed to assess whether the applicants had a reasonable prospect of success on the merits of their claim.

The Federal Court found that the applicants had failed to comply with the procedural directions issued by the court, which included providing detailed evidence and arguments to support their objection. The court held that the applicants did not demonstrate a reasonable likelihood of establishing a future act that would infringe upon their native title rights. Consequently, the objection application was dismissed. The court emphasised the importance of adhering to procedural requirements and the necessity for applicants to provide comprehensive evidence and arguments to substantiate their claims under the expedited procedure provisions of the Native Title Act.

The final orders of the court were that the objection application was dismissed, and the proposed grant of the exploration licence to Softwood Plantation Pty Ltd was not stayed. The court also noted that the decision did not preclude the applicants from pursuing their native title rights through other legal processes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established