George King/Northern Territory/Brian Stanley May and Peter Roderic Jones

[2002] NNTTA 70

NATIONAL NATIVE TITLE TRIBUNAL

George King/Northern Territory/Brian Stanley May and Peter Roderic Jones, [2002] NNTTA 70 (3 May 2002)

Application No: DO01/138

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

- and -

IN THE MATTER of an Inquiry into an Expedited Procedure Objection Application

George King (Native Title Party)

- and -

The Northern Territory of Australia (Government Party)

- and -

Brian Stanley May and Peter Roderic Jones (Grantee Party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   John Sosso                
Place:  Brisbane  
Date:  3 May 2002

Hearing Date:           3 May 2002

Representatives –

Government Party:  Mr Nicholas Papandonakis, Solicitor for the Northern Territory

Native Title Party:   Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council

Grantee Party:         Mr Peter Jones

Catchwords:  Native title – future act – proposed grant of exploration licence - expedited procedure objection application – intention not to comply with Directions – objection application dismissed pursuant to section 148(b).

Legislation:Native Title Act 1993 (Cth) s 148(b).

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

[1] In the matter currently before the Tribunal, the government party gave notice pursuant to section 29 of the Native Title Act 1993 (Cth) of its intention to grant Exploration Licence 9894 to Brian Stanley May and Peter Roderic Jones, the grantee party, and included in the Notice a statement that it considered this act attracted the expedited procedure.

[2] An expedited procedure objection application was made to the Tribunal by Mr George King on behalf of the registered claimants in the native title application D6024/00 (“Murranji”).  This application was filed in the Federal Court on 13 December 2000 and entered on the Register of Native Title Claims on 25 January 2001.

[3] On 18 December 2001 I made Directions for each of the government, grantee and native title parties to provide contentions and other relevant documents to enable an inquiry under the Act to ascertain whether or not the expedited procedure was attracted. The Directions made were in the standard form, and none of the above parties raised any particular concerns about those Directions.

[4] The Directions required the government party to lodge its statement of contentions and related documents by 23 April 2002, and for the native title party and the grantee party to do likewise by 30 April and 7 May 2002 respectively.  The government party complied with the Directions and has lodged and served its Statement of Contentions and related documents.

[5] The native title party did not lodge and serve its Statement of Contentions and related documents by 30 April. Instead Mr Mark Rumler, the solicitor holding instructions for the native title party, wrote to the Tribunal on 2 May 2002 in the following terms:

“Expedited procedure objection  DO01/138 (ELA 9894)

We refer to this matter.

We advise that we will not be filing any further material in relation to this matter nor that there are any reasonable prospects of doing so in the future.”

[6] I convened a Listings Hearing on 3 May 2002 to determine the implications of this correspondence in terms of the native title party complying with any extant or future directions of the Tribunal.

[7] Mr Frith, who appeared on behalf of the native title party, confirmed that due to an absence of funding the native title party was not in a position to proceed with the objection.  The Tribunal was also informed that there were no immediate or foreseeable prospects of the native title party complying with any existing or further directions of the Tribunal with respect to the lodging of contentions and related material.

[8] The government party submitted that the Tribunal should dismiss the expedited procedure objection application pursuant to section 148(b). This provision empowers the Tribunal to dismiss an application when “the applicant fails within a reasonable period of time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.”

[9] In this matter, the native title party had failed to comply with the Direction I made on 18 December 2001 to provide by 30 April 2002, a statement of contentions and related material. Importantly, the native title party confirmed that this failure to comply was not capable of remediation in the foreseeable future.

[10] 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).

[11] In the circumstances, having regard to the fact that there are no prospects of this objection application being prosecuted, and that the making of further directions would be futile, I am of the view that it is appropriate that the power vested in the Tribunal by section 148(b) be exercised.

Decision

[12] The objection application is dismissed pursuant to s148(b) of the Native Title Act 1993.

John Sosso
Member