Michael Page (Jawoyn)/Northern Territory/ Michael Daniel Teelow
[2003] NNTTA 9
•7 February 2003
Reported at (2003) 174 FLR 371
NATIONAL NATIVE TITLE TRIBUNAL
Michael Page (Jawoyn)/Northern Territory/ Michael Daniel Teelow, [2003] NNTTA 9 (7 February 2003)
Application No: DO02/99
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an Inquiry into an expedited procedure objection application
Michael Page on behalf of the Jawoyn People (native title party)
-and-
The Northern Territory of Australia (government party)
-and-
Michael Daniel Teelow (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Mr John Sosso
Place: Brisbane
Date: 7 February 2003
Hearing dates: 14 November 2002
Government party: Mr Matthew Storey, Solicitor for the Northern Territory
Native title party: Mr Mark Rumler, Solicitor for the Northern Land Council
Grantee party: Mr Michael Teelow
Catchwords: Native title – future act – proposed grant of exploration licence expedited procedure application – ELA covers same area as previous ELA considered by the Tribunal – proposal to dismiss under s 146(b) – amended directions - failure to comply with amended Directions – objection application dismissed.
Legislation:Native Title Act 1993 (Cth) ss 29, 146, 147, 148(b).
Cases: Dixon v Northern Territory (2002) 169 FLR 103
Page v Teelow (2002) 169 FLR 62
Phillips v Western Australia [2000] FCA 1274
Re Smith (1995) 128 FLR 300
Teelow v Page (2001) 166 FLR 266
Terry Cornwall & Ors/Western Australia/Balde Exploration Consultants & Anor WO 96/96 and WO96/101, unreported, Hon. C J Sumner, 12 February 1997
Wandarang People v Northern Territory (2000) 104 FCR 380
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
[1] There are certain unusual features to this matter which should be set out in order to gain a fuller understanding of the sequence of events that led to the dismissal of the expedited procedure objection application by the native title party.
[2] On 13 December 2001 the Northern Territory (“the government party”) gave notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed to grant Exploration Licence Application 22600 to Michael Daniel Teelow, and asserted that this act attracted the expedited procedure.
[3] In due course an objection to this assertion was made by the native title party in this matter. I conducted an inquiry into the expedited procedure objection application and on 1 February 2002 determined that the grant of Exploration Licence Application 22600 to Mr Teelow was an act that attracted the expedited procedure – Page v Teelow (2002) 169 FLR 62.
[4] Of relevance to this matter is that Exploration Licence 22600 comprises the same land and waters as does Exploration Licence 23605. It would appear that subsequent to the Tribunal making its determination Mr Teelow failed to comply with the requirements of the government party for the granting of the exploration licence. Due to this failure Exploration Licence 22600 was never granted to Mr Teelow.
[5] On the 12 June 2002, the government party gave notice under section 29 of the Act of its intention to grant Exploration Licence Application 23605 to Mr Teelow and again asserted the expedited procedure.
[6] On 14 October 2002, Michael Page on behalf of the Jawoyn People (‘the native title party’) again lodged with the Tribunal a Form 4 – Objection to inclusion in an Expedited Procedure Application.
[7] In summary, therefore, the Tribunal within a relatively short time frame was presented with an almost identical situation: an expedited procedure objection inquiry involving the same land and waters and the same parties and with no intervening exploration activity.
Relevant Facts
[8] On 18 October 2002, Deputy President Sumner issued the following directions to the parties:
A Status conference (if necessary) will be held on 6 January 2003.
On or before 3 February 2003 the Territory is to provide to the Tribunal, the objector and the grantee a statement of contentions and documents relevant to the Inquiry including:
(a)a topographical map of scale 1: 100,000 marked with
ithe areas of the licence/s and the location of registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989; and
iiboundaries of various tenures of land within and overlapping the boundaries of the tenement with details of the nature of each such tenure.
(b)the details of any Aboriginal community within and in the vicinity of the licence/s;
(c)Tenement documents, including:
icopies of the application for the licence/s;
iicopies of the proposed Schedule of Endorsements and Schedules of Conditions;
iiidetails of any current tenement covering or in the near vicinity of the licence area and whether it was the subject to the right to negotiate provisions of the Native Title Act; and
ivavailable details of prior tenements granted over the same area including the date of the grant and the date of expiry.
On or before 10 February 2003 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;
(c)the details of the registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989 as released from the Aboriginal Affairs Protection Authority; and
(d)a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
On or before 17 February 2003 the grantee party shall provide the following to the Tribunal and each other party:
(a)a statement of contentions; and
(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 to be 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)a statement of the evidence to be given by any witness for the grantee party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
On or before 24 February 2003 each party may reply to the contentions made pursuant to Directions (2), (3) and (4). (NOTE: a reply should not restate matters already dealt with in the contentions.)
A listing hearing (if necessary) will be held on 3 March 2003.
Liberty is given to apply to vary these directions or for a relisting of this hearing.
Parties are asked to note that:
·if the objector (the native title party) fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal, the Tribunal may dismiss the application (s 148(b) Native Title Act 1993 (as amended));
·a copy of any correspondence, e-mail or document provided to the Tribunal by any party must be provided simultaneously to every other party, unless there are any issues of confidentiality which arise.
·As far as practicable parties are to provide evidence in documentary form (see paragraph 3.16 of the Procedures under the Right to Negotiate Scheme issued by the Tribunal on 8 February 2002 and in particular para 3.16.4); and
·The expression tenement/s used herein and in subsequent directions in this matter includes, where appropriate, any exploration or other licence under the Mining Act (NT), the subject of a notice issued under s 29 of the Native Title Act.
[9] On 11 November 2002 Deputy President Sumner, as Delegate of the President, appointed me as the Member to constitute the Tribunal for the purpose of this expedited procedure objection inquiry.
[10] Mr Teelow made the following written submissions on 8 November 2002:
“ELA23605 is exactly the same ground as ELA22600 that was heard by Member Sosso in the Tribunal during 2001. Mr Sosso found that ELA 22600 did attract the expedited procedure and recommended the granting of the Exploration license. The minister for Mines notified me he was granting the EL. Part of the fee’s and bond were paid.
Due to an oversight and a misunderstanding by investors and a mines department person the remainder of the fees were not paid on time and the EL lapsed ... . In light of the previous decision made by Member Sosso, I believe the objections to ELA23605 should be dismissed. If not then I wish to move into the Shortened Directions.”
[11] On 11 November 2002 Mr Storey made written submissions which were broadly supportive of those made by Mr Teelow. The essential parts of Mr Storey’s submission are outlined below:
“The area covered by ELA 23605 is exactly the same area covered by EL 22600. The parties to objection DO02/99 are the same as those to DO01/22. In these circumstances it would appear wise to utilise the power granted to the Tribunal pursuant to s 146(b) and adopt the determination of the Tribunal in DO01/22 for the purposes of the Inquiry in DO02/99. The Northern Territory therefore makes an application for this to occur.
I have attached a set of draft directions to give effect to this application. The effect of these directions is to give the Native Title Party an opportunity to make submissions regarding this application. One would presume such submissions would go to highlighting any changed circumstances relevant to a s 237 inquiry that have taken place in the last twelve months.
[12] The draft directions attached to Mr Storey’s submission are set out below:
The directions in this matter made on 18 October 2002 by Deputy President Sumner are vacated.
(If necessary) a Listing Hearing to consider the Government Party’s application to have the Tribunal adopt pursuant to s 146(b), the Tribunal’s determination in DO01/22 will be held on Tuesday 17 December 2002.
The Native Title Party is to file and serve any submission and evidentiary material in response to the Government Party’s application by Tuesday 26 November 2002.
The Government Party and Grantee Party are to file any submissions and evidentiary material in response by Tuesday 3 December 2002.
The Native Title Party is to file any submission in reply by Tuesday 10 December 2002.”
[13] On the same day Mr Mark Rumler, Solicitor for the native title party, formally opposed dismissal of the expedited procedure objection application. In particular Mr Rumler dealt with the issue of the identical area and parties. He contended as follows:
“We object to dismissal pursuant to s 147.
The fact that a determination has been made that the expedited procedure is attracted to the grant of a particular ELA does not mean that it is inappropriate, such as to attract the applicability of s 147, for an Objection to brought with respect to a subsequent future act even where the area and nature of that act is identical to the subject of the determination.
It is open for example to the Native Title Party to adduce evidence of relevant actions of a Grantee Party that have either happened since the grant or evidence of previous actions that have subsequently come to light. Moreover, the fact that certain evidence has been adduced in a particular matter does not mean that further evidence in support of the subsequent Objection may not be available or be capable of being ascertained and lead. The gathering of evidence, in these matters especially, is necessarily a function of all of the circumstances including the availability of persons and resources and including matters on the ground which are always capable of variation and novelty.”
[14] Mr Mark Rumler made further written submissions on the 11 November 2002, however on this occasion he responded to the proposed directions circulated by Mr Storey:
“We refer to this matter and to the letter on behalf of the Territory of Mr Storey of even date.
We advise we neither consent to nor object to the application made therein.”
[15] On 14 November 2002 I convened a Listing Hearing, at which each of the parties made various submissions. The first matter that was dealt with was a formal application by Mr Teelow that I dismiss the expedited procedure objection application pursuant to section 147. The gravamen of Mr Teelow’s submission was that nothing material had changed since my last determination on 1 February 2002 and that, accordingly, the present objection was frivolous and vexatious. I did not accept this submission. Previously I have set out the manner in which section 147 should be approached by the Tribunal – see Dixon v Northern Territory (2002) 169 FLR 103 at 106. The key reason for rejecting this application was simply that at the time it was made the native title party had not been afforded the opportunity of lodging contentions. As Mr Rumler quite correctly pointed out in his written submissions (and this point was accepted by Mr Storey during the course of the Listings Hearing) a range of matters could have arisen since the last determination. Apart from supervening events, key evidence not submitted but extant when the first expedited procedure objection application was made, could have been produced during the course of this inquiry. The mere fact, that within a short period of time, a further expedited procedure objection application is lodged by the same native title party, over the same land and waters, involving the same grantee party, provides no prima facie basis for dismissal pursuant to section 147. Such an expedited procedure objection application is not necessarily frivolous or vexatious, and the lodging of such a further objection application by a native title party is, on its face, unexceptional. This is not to say that once the native title party has lodged its contentions that a proper basis could not be made out for dismissal pursuant to section 147. Clearly, if no new material is produced by the native title party, and it is manifestly obvious that the objection is unsustainable, the Tribunal would entertain an application from either the government or grantee parties pursuant to section 147. In this matter, however, the application by the grantee party was premature and was not accepted.
[16] The second matter dealt with was the application by the government party that I adopt, pursuant to section 146(b), my determination in DO01/22, which has subsequently been reported as Page v Teelow (2002) 169 FLR 62. Section 146 provides as follows:
“146 Evidence and findings in other proceedings
In the course of an inquiry, the Tribunal may, in its discretion:(a) receive into evidence the transcript of evidence in any other proceedings before:
(i)the Tribunal; or
(ii)a court; or
(iii)a recognised State/Territory body; or
(iv)any other person or body;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any report, findings, decision, determination or judgment of any court, person or body mentioned in any of subparagraphs (a(i) to (iv) that may be relevant to the inquiry.
[17] In the past the Tribunal has, usually with the consent of the parties, exercised its discretion pursuant to section 146, by receiving into evidence transcripts of evidence given in other expedited procedure objection inquiries that have relevance to the particular inquiry – see e.g. the approach of Hon C J Sumner in Re Smith (1995) 128 FLR 300 at 303. In that determination the Tribunal, in the exercise of its discretion, received into evidence submissions made in another expedited procedure objection inquiry. In a later inquiry, Hon C J Sumner also accepted into evidence, findings of fact made by another Tribunal Member in an expedited procedure objection inquiry held almost a year previously – see Terry Cornwall & Ors/Western Australia/Balde Exploration Consultants & Anor WO96/96 and 96/101, unreported, 12 February 1997.
[18] A similar, though not identical, provision to section 146 is section 86. The manner in which this section should be approached was discussed as some length by Carr J in Phillips v Western Australia [2000] FCA 1274. One factor dealt with by His Honour was the saving of time and resources by adopting into evidence findings made by another person or body. The circumstances presented in that case were far different from those I had to deal with. His Honour placed no weight on this factor in exercising his discretion. Nonetheless in other circumstances, the saving of time and resources, especially where there is no discord among the parties, and in also in the context of a short form expedited procedure inquiry, would be an important consideration.
[19] On at least once occasion, the Federal Court has also exercised its discretion pursuant to section 86, to receive into evidence portions of the transcripts of evidence given in land claims inquiries pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 and certain findings made by Aboriginal Land Commissioners – see Wandarang People v Northern Territory (2000) 104 FCR 380 at 386 per Olney J.
[20] In exercising its discretion pursuant to section 146 the Tribunal needs to take into account the attitude of the parties, the relevance and impact of receiving into evidence or adopting the material in question and the potential savings of time and resources that will be achieved by this course of action. While the Tribunal should not exercise its discretion in an overly conservative manner, nonetheless it is necessary to point out that the discretion vested in a Member should be exercised with a degree of caution and with the clear appreciation of the potential consequences that could follow in terms of the ultimate disposition of the objection.
[21] In this instance I was not minded to accept the submission of the government party to adopt into evidence my earlier findings, even though this course of action was not opposed by the native title party. The effect of adopting this submission would have been to unduly limit and circumscribe the course of this inquiry. The sole reference point for this inquiry would have been my previous findings, and, by implication, the state of facts that then existed. I would have been prepared to exercise my discretion and received into evidence any transcript of evidence from the previous inquiry as well as any submissions, affidavits and related material made by any of the parties that were considered relevant. Nonetheless I was not prepared at this early stage of the inquiry to adopt my previous determination in toto.
[22] Instead, I determined that it would be sensible to vacate the Directions made by Deputy President Sumner and require that the native title party provide at the outset material supplementary to that lodged in the previous inquiry. In addition I also directed that the government party was at liberty to rely on the mapping and other evidence it produced in DO01/22. The effect of the new Directions was to ensure that the native title party would have to produce new material and the other parties could sensibly respond to that new material. The new Directions were in the following form:
On or before 3 February 2003 the native title party shall provide the following to the Tribunal and each other party:
(a)a statement of contentions; and
(b)A copy of each document relevant to the Inquiry (including any affidavits to be relied on), which material is supplementary to the evidence lodged by the native title party in Objection DO01/22.
On or before 10 February 2003 the Territory is to provide to the Tribunal, the objector and the grantee a statement of contentions and documents relevant to the Inquiry. The Territory is at liberty to rely on mapping and other evidence lodged in Objection DO01/22 without providing same in this inquiry;
On or before 17 February 2003 the grantee party shall provide the following to the Tribunal and each other party:
(a)a statement of contentions; and
(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 to be 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)a statement of the evidence to be given by any witness for the grantee party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
On or before 24 February 2003 each party may reply to the contentions made pursuant to Directions (1), (2) and (3). (NOTE: a reply should not restate matters already dealt with in the contentions.)
A listing hearing (if necessary) will be held on 3 March 2003.
Liberty is given to apply to vary these directions or for a re-listing of this hearing.
Parties are asked to note that:
· if the objector (the native title party) fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal, the Tribunal may dismiss the application (s 148(b) Native Title Act 1993 (as amended));
· a copy of any correspondence, e-mail or document provided to the Tribunal by any party must be provided simultaneously to every other party, unless there are any issues of confidentiality which arise;
· As far as practicable parties are to provide evidence in documentary form (see paragraph 3.16 of the Procedures under the Right to Negotiate Scheme issued by the Tribunal on 8 February 2002 and in particular para 3.16.4); and
· The expression tenement/s used herein and in subsequent directions in this matter includes, where appropriate, any exploration or other licence under the Mining Act (NT), the subject of a notice issued under s 29 of the Native Title Act.
[23] By close of business 3 February 2003 the native title party had not lodged any material with the Tribunal or served any material on the other parties.
[24] On 4 February 2003 Mr Teelow made the following written submission:
“I request that the objections to the expedited procedure of ELA 23605 be struck out immediately due to non compliance by the Native Title parties to Member Sosso's directions….”
[25] On 5 February 2003 Mr Rumler advised the Tribunal:
“ … We confirm that we will not be adducing further evidence in this matter and that we will not be seeking an extension of time within which to do so.”
[26] The Tribunal may dismiss an application, pursuant to section 148(b) at any stage of an inquiry if the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal.
[27] In Teelow v Page (2001) 166 FLR 266 I outlined some of the factors which the Tribunal takes into account in determining whether to exercise the discretion vested in it by section 148(b). In this matter there has only been a very short period of non-compliance by the native title party. However, as Mr Rumler has made clear, there are no prospects that this non-compliance will be rectified.
[28] When a native title party informs the Tribunal that for whatever reason it will not be complying with the Directions made, then it is appropriate that the expedited procedure objection application be dismissed forthwith. Expedited procedure objection inquiries are designed to be conducted in an informal, timely and focused manner. Many of the parties who appear before this Tribunal are either unrepresented or have relatively few resources. It is desirable not only from the viewpoint of those parties, but also to enable government parties to either grant mining tenements in a timely manner or proceed to negotiate in good faith, that inquiries be concluded as soon as is practicable and fair. In this matter, it is appropriate that the dismissal power vested in the Tribunal by section 148(b) be exercised.
Decision
[29] The native title party has failed to comply with the amended Directions of the Tribunal made on 14 November 2002, and accordingly the expedited procedure objection application in relation to the grant of ELA 23605 to Michael Daniel Teelow is dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth).
John Sosso
Member
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