Jacky Green & Leslie Hogan on behalf of the Garawa and Kurdanji People (DC01/51) and Billy Coolibah & Others on behalf of the Gurdanji and Garawa People (DC00/27)/Northern Territory/Astro Mining NL

[2002] NNTTA 232

NATIONAL NATIVE TITLE TRIBUNAL

Jacky Green & Leslie Hogan on behalf of the Garawa and Kurdanji People (DC01/51) and Billy Coolibah & Others on behalf of the Gurdanji and Garawa People (DC00/27)/Northern Territory/Astro Mining NL, [2002] NNTTA 232
(13 November 2002)

Application No: DO02/72, DO02/73 & DO02/74

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

-and-

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

Jacky Green & Leslie Hogan on behalf of the Garawa and Kurdanji People – DC01/51 (native title party)

-and-

Billy Coolibah & Ors on behalf of the Gurdanji and Garawa People – DC00/27 (native title party)

-and-

The Northern Territory of Australia (Government party)

-and-

Astro Mining NL (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Mrs Jennifer Stuckey-Clarke
Place:  Sydney
Date:  13 November 2002

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) s148(b).

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 17 April 2002, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth)(“the Act”) of its intention to grant EL/23118, EL/23119 and EL/23121 to Astro Mining NL (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

1. On 19 August 2002, Jacky Green & Leslie Hogan on behalf of the Garawa and Kurdanji People (‘the native title party’), made an expedited procedure objection application to the Tribunal in respect of ELA 23119 and ELA 23121.

1. On 19 August 2002, Billy Coolibah & Ors on behalf of the Gurdanji and Garawa People (‘the native title party’), made an expedited procedure objection application to the Tribunal in respect of ELA 23118.

Relevant Facts

1. On 5 September 2002 the Tribunal received a letter from Mr Jerry Whitfield, Assistant Director of Titles, Department of Business Industry and Resource Development requesting Shortened Directions in these matters saying:

I refer to your letter of 23 August 2002, in respect of the above matters and to directions proposed whereby the Government party is required to file a statement of contentions on or before 5 December 2002. Other parties are to file contentions at weekly intervals after that date.

I am advised by the Grantee that while it is prepared to consider entering into an agreement with the Native Title Party it does not envisage that agreement would be reached within the above timeframes. The Grantee has indicated to the department that its preference is that the objection be referred to immediate determination.

In consideration of the Grantee’s advice as to the likelihood of an agreement not being reached within the “negotiation” period the Government hereby requests the matter proceed to determination by way of shortened directions.

1. The Tribunal advised all parties of the request via email dated 6 September 2002 and requested a response from the parties. On 9 September 2002, the Tribunal received an email from the grantee party representative Lisa Bowyer confirming that Astro Mining NL did not object to the Shortened Directions.

1. On 12 September 2002, the Tribunal convened a Preliminary Conference in matters DO02/72, DO02/73 and DO02/74.  The conference was attended by Mr Mark Rumler Solicitor for the Northern Land Council on the phone representing the native title party, Ms Karen On representing the Department of Business, Industry and Resource Development and Grantee Party Representative, Ms Lisa Bowyer by phone for Astro Mining NL.

At the Conference the Government Party and the Grantee Party advised the Tribunal that that their request for the shortened directions stood. Ms Bowyer further advised that it may not be possible to finalise an agreement “as the Directors may be unavailable due to overseas travel commitments”.

[7] Mr Rumler, Solicitor for the Native Title Party advised that the native title party “holds a neutral position” in relation to going to shortened directions in these matters. He stated that”[the native title party] is disappointed that Astro Mining has not provided feedback to them about the draft agreement”. He stated that the “[native title party] would prefer the usual directions to stand but ultimately they remain neutral”.

[8] On 13 September 2002, the Tribunal advised all parties that the request for shortened directions in relation to these matters would apply and advised the parties of the amended dates for compliance, commencing with the Government Party on 8 October 2002.

[9] On 1 October, 2002, Deputy President Sumner appointed me the Member to constitute the Tribunal for the purposes of this inquiry.

[10] On 16 October 2002, Mr Storey for the Government contacted Ms Cowley of the Tribunal by email saying:

I note the Native Title party’s contentions in these matters were due on 15 October 2002. At this stage the Territory does not appear to have received this material. Could you please advise me whether it has been filed with the Tribunal yet?

[11] On 16 October 2002, Ms Cowley wrote to Mr Storey:

I refer to your email today. As you will recall, Member Stuckey–Clarke requires that in her inquiries, any communication by a party to the Tribunal should be in writing and copied to all other parties at the same time as it is communicated to the Tribunal. I have therefore sent your email on to the other parties.

In relation to your query, I advise that the native title party’s contentions have not yet been filed with the Tribunal.

[12] On 16 October 2002, Mr Mark Rumler representing the Native Title Party provided the following advice by email to the Tribunal,

We refer to your e-mails of even date and to your letter dated 13 September 2002 notifying us of the shortened directions made in these matters.

We advise we have been unable to date, given the shortened directions made in these matters to which we did not consent, to obtain sufficient instruction for the purposes of taking affidavit evidence in these matters and that there are no reasonable prospects in the future for doing so within a reasonable time.

[13] On 16 October 2002, the Government party in an email to the Tribunal made a dismissal application pursuant to s.148(b) of the Act

All these matters are currently before Member Stuckey-Clarke. I refer to the attached email from Mr Rumler on behalf of the Objectors in these matters. In light of the Objectors avowed inability to comply with the directions of the Tribunal in these matters within a reasonable time, the Government Party makes application to have each of these matters dismissed pursuant to s.148(b).

In the Government Party’s submission the Tribunal may, in these circumstances, grant these applications to dismiss without need to convene a Listing Hearing. Should the Tribunal be of the view that a Listing Hearing is necessary in order to consider the applications to dismiss I would request that such a Hearing be convened as a matter of urgency.

[14] On 16 October 2002, the Tribunal received the following response via email from Mr Rumler for the Native Title Party;

We do not oppose in these circumstances the application made below on behalf of the Territory in these matters. Accordingly, we are also of the view that a Listing Hearing in these matters is not necessary.

1. Ms Cowley advised all parties;

   “In light of the dismissal application of the Government party which is not opposed by the native title party, the proposed Listing Hearing will not be convened tomorrow. The Application will be considered by the Member and a decision in respect of it advised in due course”.

Conclusion

1. In the Government Party’s contentions filed on 8 October 2002, at [3] it is said that the area of land over which the proposed exploration licence is to operate is Crown Lease Perpetual 1289 and a title search in short form is provided and at [6] it is contended that the Crown Lease Perpetual 1289 had the effect of extinguishing any remaining native title in the subject land in accordance with Western Australia v. Ward [2002] HCA 28 at [434]-[439] and the Government Party seeks dismissal of the objection application for that reason under s.148(a) of the Act.

[17] There are before me therefore applications to dismiss the objections under both limbs of section 148 of the Act. The first for want of jurisdiction under subparagraph (a) and the second for failure to comply with a direction of the Tribunal under subparagraph (b). The Government Party has sought to have the matter immediately dismissed under s. 148(b) and the native title party has not opposed dismissal on that basis. It is therefore on that basis that I dismiss the application.

Decision

Accordingly the objection applications in relation to ELA 23118, ELA 23119 and ELA 23121 are dismissed pursuant to s 148(b) of the Act.

J. E.  Stuckey-Clarke
Member
13 November 2002