Jack Hogan on behalf of the Waanyi Peoples and Roy Dixon on behalf of the Garawa People/Northern Territory/Hartz Range Mines Pty Ltd

[2002] NNTTA 112

NATIONAL NATIVE TITLE TRIBUNAL

Jack Hogan on behalf of the Waanyi Peoples and Roy Dixon on behalf of the Garawa People/Northern Territory/Hartz Range Mines Pty Ltd, [2002] NNTTA 112 (20 June 2002)

APPLICATION NOS: DO 02/23 and DO 02/26

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

-  and  -

IN THE MATTER of an Inquiry into an expedited procedure objection application

Jack Hogan on behalf of the Waanyi Peoples

-  and  -

Roy Dixon on behalf of the Garawa People (Native Title Parties)

-  and  -

The Northern Territory of Australia (Government Party)

-  and  -

Hartz Range Mines Pty Ltd (Grantee Party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   John Sosso
Place:  Brisbane
Date:  20 June 2002

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

Native Title Party:   Mr Ron Levy of the Northern Land Council

Grantee Party:         Mr Brett Anderson

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(b).

REASONS FOR DECISION

Background

[1] On the 18 October 2001, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant Exploration Licences 22579 and 10335 to Hartz Range Mines Pty Ltd (‘the grantee party’) and included a statement that it considered this act attracted the expedited procedure.

[2] On 31 January 2001, a native title determination application was filed with the Federal Court (D 6004/01). The name given to this application is “Calvert Hills”, and the Applicant is Mr Jack Hogan.  The application was entered on the Register of Native Title Claims on 26 February 2001.  The Calvert Hills application wholly covers the area of ELA 22579.

[3] On 5 December 2000, a native title determination application was filed with the Federal Court (D6019/00).  The name given to this application is “Wollogorang”, and the Applicant is Mr Albert Charlie.  The application was entered on the Register of Native Title Claims on      4 January 2001.  The Wollogorang application wholly covers the area of ELA 10335.

[4] On 18^th February 2002, a Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal in regard to each of these proposed tenements. In accordance with section 32(3), these were received within 4 months after the s 29(4) notification day of 18 October 2001.
The named objectors were –   “Calvert Hills” – Jack Hogan on behalf of the Waanyi Peoples
  NT, who is also the applicant, and

“Wollogorang” – Roy Dixon on behalf of the Garawa People.

[5] In accordance with the standard practice of this Tribunal, Directions were made on 27 February 2002 to 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 in each of these matters. In particular, the Directions required the government to file contentions by 10 June 2002, and the native title party to file contentions by 17 June 2002.

[6] On 23 May 2002, Mr Ron Levy, Principal Legal Officer with the Northern Land Council, the representative body which provides funding to each of these native title parties for their expedited procedure objection applications, wrote to the Tribunal with respect to numerous expedited procedure inquiries which involved De Beers Australia Exploration Ltd.  Each of these matters fell within the list of inquiries enumerated in the letter which said :

“In relation to these matters we advise as follows:

Representation

We, as solicitors acting for the objectors, are unable to comply with the Tribunal’s orders for the filing of contentions and other material.  The reason we are unable to comply with those orders is that the body responsible for funding, the NLC, is no longer prepared to provide resources for compliance with those orders.  The reason the NLC has made this funding decision relates to the alternative process now available under the Memorandum of Understanding between De Beers Australia Exploration Limited and the NLC.

However, notwithstanding the limitations which have now been placed on the funding available us, we remain solicitors on the record for the objectors.  Accordingly, pursuant to our ethical obligations we are obliged to inform the Tribunal of the funding limitation so that such action as is appropriate can be taken.  We anticipate that the Tribunal will call the relevant matters on for hearing and determine the objections.  We accept that this is the appropriate course of action for the Tribunal to take, given our advice, regarding these matters.”

Mr Levy then outlined the stages the various enquiries had reached and the suggested procedure to be adopted by the Tribunal in each instance.  These enquiries were categorised as follows:

“(iii )the Tribunal has only been provided with a form 4, and in light of the above no material will be filed”

with the suggestion that:

“(iii)since it is clear that evidentiary material will not be filed, the Tribunal should vacate its current directions and proceed to decision.”

[7] On the 24 May 2002, the Tribunal received correspondence from Mr Nicholas Papandonakis, on behalf of the Northern Territory, in the following terms:

“Given yesterday’s correspondence from Mr Ron Levy of the Northern Land Council (“NLC”) advising that they are unable to comply with the Tribunal’s orders for the filing of contentions and other materials in these and other De Beers matters, the Government Party requests that the Tribunal:

1.   reverse Directions 1 and 2 to require the Native Title Party to file its Contentions prior to the Government Party.

2.   bring forward the dates for compliance with the amended directions to:

(a)    Direction 1 (Native Title Party) – 3 June 2002 (being 7 days from next Monday); and

(b)    Direction 2 (Government Party) – 10 June 2002

3.   make Direction 1 (Native Title Party) a “springing direction” such that non-compliance would forthwith lead to dismissal of the application pursuant to s.148(b) NTA.

…the Government Party submits that the Directions can be amended as sought, with the consent of all parties, without need for a Listings Hearing.”

[8] Accordingly, on 28 May 2002, I made the following Directions in regard to these inquiries:

“(1)On or before 4 June 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.

(2)    Should the native title party not comply with Direction one (1) by close of business 4 June 2002 the Tribunal, pursuant to s148(b) of the Native Title Act, shall forthwith Dismiss the Expedited Procedure Objection Applications : DO 02/23 and DO 02/26.”

[9] By close of business on 4 June 2002, no contentions were lodged by either of the native title parties.  A “springing” or “guillotine” order/direction is self-executing.  Accordingly by close of business 4 June 2002, each of these objections was dismissed.

[10] This Decision is a formality only as the springing Direction made in each of these matters on the 28 May 2002 requires no further action.  However it is important to note the background for these Directions, and that these matters came to this state by the decision of the representative body to withdraw funding for these objection applications. 

Decision

Each of the native title parties has failed to comply with Directions made by the Tribunal on 28 May 2002, and in accordance with the terms of the Directions, each objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Member