ABORIGINES – native title – future acts – proposal to grant rights to mine – notification of parties affected –inclusion of expedited procedure statement – whether giving notice and including expedited procedure statement are reviewable discussions.
ADMINISTRATIVE LAW – judicial review – notice pursuant to s 29 of the Native Title Act – whether giving notice and inclusion of expedited procedure statement are reviewable decisions.
JIMMY HOLT v THE HON. DARYL MANZIE MLA, NORTHERN TERRITORY MINISTER FOR RESOURCE DEVELOPMENT & NORTHERN TERRITORY OF AUSTRALIA
N 1271 of 2000
OLNEY J DARWIN 5 JUNE 2001
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
N 1271 OF 2000
BETWEEN:
JIMMY HOLT APPLICANT
AND:
THE HON. DARYL MANZIE MLA, NORTHERN TERRITORY MINISTER FOR RESOURCE DEVELOPMENT FIRST RESPONDENT
NORTHERN TERRITORY OF AUSTRALIA SECOND RESPONDENT
JUDGE:
OLNEY J
DATE OF ORDER:
5 JUNE 2001
WHERE MADE:
DARWIN
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY
DISTRICT REGISTRY
N 1271 OF 2000
BETWEEN:
JIMMY HOLT APPLICANT
AND:
THE HON. DARYL MANZIE MLA, NORTHERN TERRITORY MINISTER FOR RESOURCE DEVELOPMENT FIRST RESPONDENT
NORTHERN TERRITORY OF AUSTRALIA SECOND RESPONDENT
JUDGE:
OLNEY J
DATE:
5 JUNE 2001
PLACE:
DARWIN
REASONS FOR JUDGMENT
Preface
In July 1998, at about the same time as the Australian Parliament was grappling with amendments to the Native Title Act1993 (the Native Title Act) arising out of the High Court’s decision in Wik Peoples v Queensland 187 CLR 1, the Nisga’a people of British Colombia concluded a Final Agreement with the Canadian and British Columbian governments in settlement of a 111 year struggle for recognition of their claim to their traditional land in the Nass Valley B.C. The long and tortuous process which had led to the agreement is recounted by Tom Molloy QC, the Chief Federal Negotiator involved in the negotiations, in his book The World Is Our Witness (Fifth House Ltd, 2000). In discussing the work of a bilateral Canada/British Colombia committee whose task was to establish a legal technique for achieving certainty in the Nisga’a Final Agreement without requiring the surrender of aboriginal rights and title, Molloy says (at pp 62-3)
It was one of the most important working groups, since it found a way to achieve certainty as no other process or negotiations had. The term “certainty,” though perhaps employed unconventionally in this context, can be defined as any standard dictionary would define it: undoubted, a thing that may be relied on. As the Preamble to the Final Agreement states, “The Parties intend that this Agreement will provide certainty with respect to ownership and use of lands and resources, and the relationship of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Holt v Manzie [2001] FCA 627
Case
[2001] FCA 627
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Holt sought to challenge the competence of Manzie in his capacity as the Northern Territory Minister for Resource Development, to grant exploration licences, mineral claims, and petroleum exploration permits. The applicant argued that the notices published by the respondent were invalid under the Native Title Act 1993 (Cth), as they did not provide adequate descriptions of the areas affected and did not comply with the expedited procedure. The applicant sought an order for review of the decisions made by the respondent.
The central legal issue before the court was whether the notices published by the respondent were competent under the Native Title Act and if there were any reviewable decisions that could be subject to judicial review. The court needed to determine if the notices provided a clear description of the areas that may be affected by the proposed grants, as required by the Act. Additionally, the court had to examine whether the Koori Mail, the publication in which some of the notices were published, qualified as a relevant special-interest publication for the purposes of the Act.
The court found that the notices published by the respondent did not provide a clear description of the areas that may be affected, as required by the Native Title Act. However, the court also determined that no reviewable decisions were involved in the process of publishing the notices. Consequently, there was no basis for the applicant to seek a review of the decisions under the Administrative Decisions (Judicial Review) Act or any other jurisdictional basis. As a result, the application for review was dismissed.
ORDERS:
1. The application be dismissed.
Orders
Orders of the court
1. The application be dismissed.
Background
Background to the litigation
The proceeding was tried in Darwin on 24 and 26 April 2001. Affidavit evidence was adduced by the applicants and the respondents. In addition, the applicant tendered four volumes of documents as to which only minor objection was taken by the respondents. The only objections to the affidavit evidence were based on the relevance of the materials in question. Much of evidence adduced was rendered irrelevant by reason of successive amendments made to the application as originally filed. The issues which remain for determination by the Court are not dependent upon any contentious question of fact. The Facts The evidence establishes that:(i)On 6 September 2000 and thereafter at fortnightly intervals until 29 November 2000, the first respondent caused to be published in the Northern Territory News and in the Koori Mail, a series of advertisements giving notice of his intention to grant the various applications for exploration licences, mineral claims and petroleum exploration permits identified in Schedule A to the application. (On 1 November 2000 two separate notices were published: one referring only to exploration licence applications, the other to petroleum exploration permit applications).(ii)Omitting the particulars of the applications referred to, each notice advertised in the Northern Territory News in relation to exploration licence applications was in the following form: NOTICE OF PROPOSED GRANT OFEXPLORATION LICENCESMINING ACT (NT) SECTION 163NATIVE TITLE ACT 1993 (CTH) SECTION 29The Northern Territory Minister for Resource Development, c/- Department of Mines and Energy, GPO Box 2901 DARWIN, NT 0801, hereby gives notice in accordance with section 163 of the Mining Act (Northern Territory) and section 29 of the Native Title Act 1993 (Commonwealth) of his intent to do an act, namely to grant the following exploration licence(s) in accordance with the application(s) made therefor.[Particulars of the applications to which the notice is intended to apply are provided]Nature of act(s): Grant of an exploration licence(s), under the Mining Act which authorises the holder to explore for minerals for a term of 6 years from the date of grant and to seek renewal(s). Further information about the act may be obtained from the Department of Mines and Energy, GPO Box 2901, Darwin NT 0801 or Centrepoint Towers 48 – 50 Smith St, Darwin, telephone (08) 89 995213.Native Title Parties: Any person who is, or becomes a “native title party” within the meaning of the Native Title Act is entitled to the negotiation and/or procedural rights provided in Part 2, Division 3, Subdivision P of the Native Title Act. Under section 30 of the Native Title Act, persons have until 3 months after the notification day to take certain steps to become native title parties in relation to this notice. Enquiries concerning becoming a native title party should be directed to the National Native Title Tribunal, Level 5, NT House, 22 Mitchell Street Darwin NT 0800 or GPO Box 9973, Darwin NT 0801, telephone (08) 89361600.Expedited Procedure: The Northern Territory Government considers that the act(s) is an act(s) attracting the expedited procedure as defined in Section 237 of the Native Title Act. The exploration licence(s) referred to in this notice may be granted unless an objection is made by a native title party to the statement that the act is one which attracts the expedited procedure. Such an objection must be made to the National Native Title Tribunal within 4 months of the notification day.Objection or Comment Section 163 of the Mining Act: The owners or occupiers of land in respect of which the above application(s) are made may, not later than 2 months after the notification day, lodge in writing with the Department of Mines and Energy at the above mentioned address, an objection to the grant of the application(s). Any other person may, within 2 months after the notification day, lodge in writing with the Department comments on the grant.Notification day: [In each case the notification date is the same date as the date of the newspaper](iii)In the case of the notices advertised in the Koori Mail no reference is made to the Mining Act (NT) and the whole paragraph headed “Objection or Comment Section 163 of the Mining Act” is omitted. (iv)The notices published in respect of applications for mineral claims differ only to the extent that they contain no reference to the expedited procedure and the information following the heading “Nature of act(s)” refers to the nature of a mineral claim. Similar appropriate changes were made to the form of the notice in respect of applications for petroleum exploration permits to accommodate the provision of the Petroleum Act (NT). The expedited procedure statement does not appear in the petroleum permit notices.(v)In no case was there at the relevant time(a)any registered native title body corporate in relation to any of the land or waters that would be affected by any of the applications:(b)any registered native title claimant in relation to any of the land or waters that would be affected by any of the applications. (vi)All of the applications referred to in the notices relate to land or waters within an area for which either the Northern Land Council or the Central Land Council is the representative Aboriginal/Torres Strait Islander body. (vii)In each case notice was given to:(a)either the Northern Land Council or the Central Land Council as the relevant representative Aboriginal/Torres Strait Island body (depending on the location of the land and waters affected by the application); (b)the person or other body who made the application. (viii)The Northern Territory News is a newspaper which circulates generally throughout each of the areas to which each of the published notices relates. (ix)The Koori Mail is a newspaper or magazine that (a)caters mainly or exclusively for the interests of Aboriginal peoples or Torres Strait Islanders; (b)is published at least once a month. (x)Apart from the Koori Mail, there is no other newspaper or magazine that caters mainly or exclusively for the interests of Aboriginal peoples or Torres Strait Islanders and which is published at least once a month circulating in the Northern Territory. (xi)In no case was notice given by broadcasting the information about the content of the notice by means of a radio broadcasting service or a television transmission service. (xii)The national distribution of the Koori Mail is approximately 8000 copies per fortnight, of which approximately 430 copies are distributed in the Northern Territory. There are approximately 140 subscribers in the Northern Territory which account for 165 copies. The regional distribution of the publication is as follows: (a)Darwin: 65 subscriptions, 75 copies(b)Alice Springs: 45 subscriptions (15 in outlying areas), 60 copies. (c)“Top End” centres (Jabiru, Katherine, Nhulunbuy, Batchelor and Tennant Creek): 20 subscriptions, 20 copies. (d)Outlying mainland areas (Yirrkala, Peppimenarti, Numbulwar, Port Keats and Milingimbi): 8 subscriptions, 8 copies. (e)The remainder of the copies distributed in the Northern Territory are distributed to newsagents and stores in Darwin (144 copies), Alice Springs (49 copies), Katherine (15 copies), Nhulunbuy (28 copies) and Tennant Creek (15 copies). (xiii)Each notice contains a description of the area that may be affected by the proposed future acts. The method of describing each such area varies. In most cases only a verbal description is used in which reference is made to a distance from a particular place; in others a sketch is also provided. In each case the geophysical co-ordinates (latitude and longitude) of the “centroid” of each area are provided. The Objection to Competence
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
OLNEY J
The applicant also seeks to invoke the Court’s jurisdiction under s 39B of the Judiciary Act on the basis that the matter arises under a Commonwealth statute. The relevant provision, s 39B(1A)(c), confers original jurisdiction on the Federal Court in any matter arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. A matter arising under the Native Title Act is clearly one in which the Court has jurisdiction. The only claim made by the applicant is for review of the decisions identified in the application and no argument has been put to suggest that any different considerations apply to the exercise of the Court’s jurisdiction under the Judiciary Act than apply to an application for review under Administrative Decisions (Judicial Review) Act. In the absence of any decision, there can be no review of a decision whatever jurisdictional basis is relied upon.Conclusion The application for an order of review as sought by the applicant will be dismissed.Postscript On the first day of the trial I was informed that on the previous day (23 April 2001) a Deputy President of the National Native Title Tribunal (The Hon. E M Franklyn QC) had delivered a decision in which he determined that the s 29 notices published by the first respondent on 6 September 2000 in relation to seven applications for exploration permits did not conform with the requirements of the Native Title Act and consequently were invalid. It would be inappropriate in these reasons to comment on the reasoning that led the Deputy President to this conclusion except to say that it appears from his reasons that substantially the same evidence and arguments were advanced before the Tribunal as were advanced in this proceeding and that the basis of the Tribunal’s decision is a finding that the notices did not provide a clear description of the area that may be affected by the act as required by clause 6(5)(a) of the Notices Determination. My reluctance to comment is twofold: first, as I have concluded that no reviewable decisions were involved in the s 29 process, it has been unnecessary for me to enter upon a consideration of the other questions raised in the application, namely, the adequacy of the description of the relevant areas and the question of whether the Koori Mail is in any particular case a relevant special-interest publication; secondly, I have been informed by counsel appearing for the respondents that an appeal to the Federal Court against the Deputy President’s decision is being contemplated.