George King on behalf of the Yingawunarri and Narlwan Peoples/Northern Territory/ Graham Inglis and Donald McGowan

[2002] NNTTA 142

NATIONAL NATIVE TITLE TRIBUNAL

George King on behalf of the Yingawunarri and Narlwan Peoples/Northern Territory/
Graham Inglis and Donald McGowan, [2002] NNTTA 142 (18 July 2002)

APPLICATION NO: DO02/30

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 on behalf of the Yingawunarri and Narlwan Peoples (Native Title Party)

- and -

The Northern Territory of Australia (Government Party)

- and

Graham Inglis and Donald McGowan (Grantee Party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Mr John Sosso
Place:  Brisbane
Date:  18 July 2002

Hearing Dates:         16 July 2002

Government Party:   Mr Matthew Storey, 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 Graham Inglis

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) ss 29, 32, 148

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

[1] On the 31 October 2001, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant Exploration Licence 9916 to Graham Inglis & Donald McGowan (‘the grantee party’).  The notice included a statement that the Government considered the grant of the licence attracted the expedited procedure. 

[2] On 13 December 2000, a native title determination application was filed with the Federal Court (D6024/00).  The name given to this application is “Murranji”, and the Applicant is Mr George King.  The application was entered on the Register of Native Title Claims on 25 January 2001.  The Murranji application wholly covers the area of ELA 9916.

[3] On 28 February 2002, a Form

4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal in regard to this proposed tenement. In accordance with section 32(3), this was received within 4 months after the s 29(4) notification day of 31 October 2001. The named objector was Mr George King on behalf of the Yingawunarri and Narlwan People.

[4] In accordance with the standard practice of this Tribunal, Directions were made on 11 March 2002 to 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 in this matter.  In particular, the Directions required the Government to file contentions by 20 June 2002, and the native title party to file contentions by 27 June 2002.

[5] On 10 July 2002, Mr Mark Rumler, a Solicitor with the Northern Land Council, the representative body which provides funding to the native title party for the expedited procedure objection application, wrote to the Tribunal in the following terms:

“We advise we have been unable to date to obtain sufficient instruction for the purposes of taking affidavit evidence in this matter and that there are no reasonable prospects in the future for doing so within a reasonable time.”

[6] A Listings Hearing was convened on 16 July 2002 during which Mr Angus Frith, who appeared on behalf of the native title party, confirmed that there was “no prospect of compliance with Directions” in this matter.

[7] At the Listings Hearing Mr Storey submitted that the Tribunal should dismiss the application pursuant to section 148(b) given the native title party’s stated inability to comply with the Directions made on 11 March 2002.

[8] Section 148 of the Native Title Act provides as follows:

“The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

(a)the Tribunal is satisfied that it is not entitled to deal with the application; or

(b)the applicant fails within a reasonable 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 failed to comply with the Directions made on 11 March 2002 and, importantly, informed the Tribunal that this failure to comply was not capable of remediation in the foreseeable future. When a native title party has failed to comply with Directions, formally advises the Tribunal that such failure will continue and it is apparent that there are no reasonable prospects of the situation changing in the short term, then there is proper scope for the Tribunal to dismiss the application pursuant to section 148(b).

Decision

The expedited procedure objection application by Mr George King on behalf of the Yingawunarri and Narlwan People to the grant of Exploration Licence 9916 to Graham Inglis and Donald McGowan is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Member