Michael Page on behalf of the Jawoyn People/Northern Territory/John Anthony Earthrowl

[2002] NNTTA 141

NATIONAL NATIVE TITLE TRIBUNAL

Michael Page on behalf of the Jawoyn People/Northern Territory/John Anthony Earthrowl, [2002] NNTTA 141 (18 July 2002)

APPLICATION NOS: DO02/29, DO02/38, DO02/39

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 -

John Anthony Earthrowl (Grantee Party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Mr John Sosso
Place:  Brisbane
Date:  18 July 2002

Hearing Dates:         17 June 2002, 16 July 2002

Government Party:   Mr Matthew Storey, Solicitor for the Northern Territory

Native Title Party:   Mr Angus Frith of counsel, instructed by Mr Mark Rumler of the Northern Land Council

Grantee Party:         Mr John Anthony Earthrowl

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) ss 29, 32, 148.

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

[1] On the 31 October 2001, the government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant Exploration Licences 10043, 10167 and 9899 to John Anthony Earthrowl (‘the grantee party’).  In each case the notice included a statement that the government party considered the grant of the licences attracted the expedited procedure. 

[2] On 5 December 2000, a native title determination application was filed with the Federal Court (D6018/00).  The name given to this application is “Mary River”, and the Applicant is Mr Michael Page.  The application was entered on the Register of Native Title Claims on

4 January 2001.  The Mary River application wholly covers the area of Exploration Licences 10043, 10167, and 9899.

[3] On 28 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 31 October 2001. In each case, the named objector was Mr. Michael Page on behalf of the Jawoyn People.

[4] In accordance with the standard practice of this Tribunal, Directions were made on 11 March 2002 to 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 20 June 2002, and the native title party to file contentions by 27 June 2002

[5] On 12 June 2002 Mr Mark Rumler, the solicitor acting on behalf of the native title party in each matter, wrote to the Tribunal in the following terms:

“We refer to the directions in these matters and in particular to the dates of compliance for filing and service of the respective Objectors’ Contentions.

We require further time within which to obtain affidavit evidence on behalf of the respective Objectors. Accordingly, we seek an extension of 14 days to 9 July 2002 within which to comply.”

[6] Mr Rumler forwarded a copy of this letter to the other parties, and on the same day Mr Storey on behalf of the government party wrote to the Tribunal formally objecting to the application for a variation of the Directions. The government party contended as follows:

“The Government Party opposes these applications.  The only basis for Mr Rumler’s request is to (sic) because the Native Title Parties “require further time within which to obtain affidavit evidence”.

The Native Title Parties in all of these matters lodged objections on 28 February 2002.  At the time of the lodging of the Objection the solicitors for the Native Title Parties’ were aware of the need to obtain affidavit evidence.  Indeed, one would assume that the Objectors must have traversed the subject matter of the relevant affidavit evidence with their solicitors in order to obtain the instructions necessary to complete the detail of the Form 4 giving rise to these objections.

To suggest than an affidavit could not have been prepared in the intervening three and half months is ridiculous.  To suggest that such material cannot be prepared within the forthcoming fortnight but can within the subsequent one is verging on the ludicrous.  This is particularly so in relation to the matters referred to by the Native Title Parties.

In respect of matters DO02/29, 38 and 39 a single Objector is disclosed with respect to each of the matters.  That person is Michael Page.  The area of the proposed Exploration Licences are located on Mary River station and Ban Ban Springs Station.  These are less than 160 kilometres from Darwin and adjacent to the Stuart Highway.

… Granting the Native Title Party’s application would defeat the intent of the legislative regime designed to ensure such matters are dealt with expeditiously.  It would also seriously inconvenience the Government Party through disrupting a work schedule in relation to other matters that has been clear and well publicised for a number on (sic) months.”

[7] A Listings Hearing was convened on 17 June 2002 to provide an opportunity to the parties in each of the matters to formally address the application for a variation in the Directions, in the manner sought by the native title party. At the Listings Hearing both the government and grantee parties opposed the variation sought for reasons not dissimilar to those outlined by Mr Storey in his letter of 12 June 2002. Mr Frith explained that the resources of the Northern Land Council were being directed towards activities related to a Memorandum of Understanding with another mining company.

[8] Having heard the various submissions I declined to vary the Directions in the manner sought by the native title party. My reasons for declining to vary the Directions are set out below.

[9] First, the issue of how the Northern Land Council determines it priorities and allocates its resources is a matter for that body. If that body makes a decision to give a higher priority to resourcing certain activities over matters germane to expedited procedure objection applications, then that is an issue for it. However, it is not a matter which prima facie warrants the Tribunal varying Directions to the inconvenience and against the wishes of other parties who have either complied with Directions or evince an intention of so complying. In short internal priority setting by a representative body does not of itself provide a basis for the Tribunal deferring compliance with Directions, especially when those Directions have been set some time beforehand and when those Directions were made with the knowledge, participation and consent of all of the parties.

[10] Second, the application was made before the expiration of the time for compliance with the Directions. I indicated to Mr Frith that he was at liberty to make a further application after the date for lodging contentions by the native title party had passed.

[11] On 20 June 2002 the government party lodged contentions in each matter in compliance with the Directions made on 11 March 2002. The native title party in each matter did not lodge contentions on or after 27 June 2002 as required by the Contentions. No request for a variation of the Directions was made by the native title party.

[12] On 10 July 2002, Mr Mark Rumler wrote to the Tribunal in the following terms:

“We advise we have been unable to date 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] A Listings Hearing was convened on 16 July 2002 during which Mr Angus Frith, representative of the Northern Land Council, confirmed that there was “no prospect of compliance with Directions” in these matters. Both the government and grantee parties submitted that each of the expedited procedure objection applications should be dismissed pursuant to section 148(b)

[14] Section 148 of the Native Title Act states as follows:

“The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

(a)the Tribunal is satisfied that it is not entitled to deal with the application; or

(b)the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application”

[15] Having regard to the history of these matters it is clear that the native title party’s failure to comply with the Directions will not be rectified in the foreseeable future. When the Tribunal is confronted with a situation where a native title party is in breach of directions made, and it formally indicates an unpreparedness or inability to remedy that breach and comply with the Directions, then there is proper scope for the Tribunal to dismiss an expedited procedure objection application pursuant to section 148(b).

Decision

Each of the expedited procedure objection applications made by Michael Page on behalf of the Jawoyn People to the grant of Exploration Licences 10043, 10167 and 9899 to John Anthony Earthrowl is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Member