Kathleen Parry & Others for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples/Northern Territory/Troy Resources NL

[2003] NNTTA 18

NATIONAL NATIVE TITLE TRIBUNAL

Kathleen Parry & Others for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples/Northern Territory/Troy Resources NL, [2003] NNTTA 18 (12 February 2003)

Application No: DO02/76

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

-and-

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

Kathleen Parry & Ors for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples – DC01/28 (native title party)

-and-

The Northern Territory of Australia (Government party)

-and-

Troy Resources NL (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Darwin
Date:  12 February 2003

Catchwords:             Native title – future act – proposed grant of exploration licence expedited procedure objection application – failure to comply with Directions – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) s148(b).

Cases:Dixon/Northern Territory/Plenty River Corporation, NNTT DO01/50, Mrs Jennifer Stuckey-Clarke, 10 December 2001

Dixon v Northern Territory (2002) 169 FLR 103

Michael Page(Jawoyn)/Northern Territory/Michael David Teelow, [2003] NNTTA 9

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On the 1 May 2002, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence ELA22496 to Troy Resources NL (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

1. On 2 September 2002, Kathleen Parry & Ors for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant Facts

1. On 6 September 2002, the Tribunal issued directions for the purposes of conducting an inquiry into the expedited procedure objection application.  These directions were in the standard form which allows for a 16 week period of negotiations to see if agreement can be reached between the parties on the grant of the tenement before the filing of contentions and documents is required.

2. On 26 September 2002 a Preliminary Conference was convened during which the Northern Land Council, representing the native title party, requested that directions made on 6 September 2002 be amended to allow for a wet season lay-off period.  The Government party supported this request and no opposition was received from the grantee party, represented by Mr Robin Humberston.  I amended the directions by requiring that the Government party provide its contentions and documents by 10 February 2003, those of the native title party by 17 February 2003, those of the grantee party by 24 February 2003 and Replies from all parties by 3 March 2003.

3. On 6 February 2003 the Tribunal received the following advice from Mr Mark Rumler of the Northern Land Council:

   ‘I confirm that in relation to the matter, the Native Title Party will not be filing contentions by the current due date of 17 February 2003 and that it does not seek an extension of time within which to do so.

   I assume therefore that the Tribunal will deal with the Objections accordingly.  Should the Tribunal consider excusing the other parties from further compliance with directions and dismissing the Objection application, the Native Title Party does not seek to be heard.’

4. On 6 February 2003 the Tribunal received the following request from the Government party:

   ‘It is evident from the letters dated 6 February 2003 that the Native Title Party will not be prosecuting these matters any further and therefore the Government Party seeks that the objection be dismissed pursuant to s.148(b) NTA …’

In separate correspondence received on the same date the Government party also requested:

‘I note that our contentions are due to be filed by close of business 10 February 2003.  In the circumstances, the Territory requests that it be exempted from compliance with the directions requiring the filing of any contentions in these matters.’

1. On 10 February 2003 I exempted the Government Party from the requirement to provide their contentions and documents by 10 February 2003.

2. The Tribunal has held that where a native title party has advised of its intention not to comply with directions the Tribunal may dismiss an objection application forthwith, even though the date for compliance has not passed (Dixon/Northern Territory/Plenty River Corporation, NNTT DO01/50, Mrs Jennifer Stuckey-Clarke, 10 December 2001 at [12]; Dixon v Northern Territory (2002) 169 FLR 103 at [20] (Mr J Sosso); Michael Page(Jawoyn)/Northern Territory/Michael David Teelow, [2003] NNTTA 9 at [28] (7 February 2003) (Mr J Sosso). Relevantly s 148(b) of the Act says that the Tribunal may dismiss an application if ‘the applicant … fails to comply with a direction of the Tribunal’. In my view and consistent with the above decisions where an applicant expresses a clear intention not to comply with a direction then it can be taken to have failed to comply and the Tribunal has power to dismiss the application.

Decision

1. The native title party has informed the Tribunal that it does not intend to comply with the Tribunal’s direction to provide its contentions and documents by 17 February 2003 or at all. Accordingly the objection application in respect of exploration licence ELA22496 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
12 February 2003