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Northern Territory v Ward

Northern Territory v Ward

Case [2001] NNTTA 163 21 December 2001

Native Title

Procedural Irregularities

Statutory Construction

Right to Negotiate

Future Act

Indigenous Peoples & Native Title Law

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NATIONAL NATIVE TITLE TRIBUNAL

Northern Territory/Ben Ward and Others on behalf of the Miriuwung & Gajerrong People;
Moses Silver, Ishmael Andrews & Sammy Bulabul; Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham & Gabriel Hazelbane; Michael Page; Button Jones/Ashton Exploration Australia Pty Ltd; Stephen Darryl Moffatt; Grant Archer, David Langley & Jim Kastrissios; Arafura Resources N/L; Michael Daniel Teelow, [2001] NNTTA 163 (21 December 2001)

Application No: DO01/3, DO01/13, DO01/19 – DO01/23

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

- and -

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

The Northern Territory of Australia (Government Party)

- and -

Ben Ward and Others on behalf of the Miriuwung & Gajerrong People,

Moses Silver, Ishmael Andrews & Sammy Bulabul,

Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick
Markham & Gabriel Hazelbane,

Michael Page, and

Button Jones (Native title parties)

- and -

Ashton Exploration Australia Pty Ltd,

Stephen Darryl Moffatt,

Grant Archer, David Langley & Jim Kastrissios,

Arafura Resources N/L, and

Michael Daniel Teelow. (Grantee parties)

DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY

Tribunal:       John Sosso, Member
Place:             Brisbane
Date:              21 December 2001

Catchwords: Native title – act attracting the expedited procedure – expedited procedure objection application – right to negotiate – objection inquiry process – future act – compliance issues – type of evidence – statutory and regulatory provisions – procedural irregularities – acceptance of forms lodged.

Legislation:

Acts Interpretation Act 1901 S25C
Bankruptcy Act 1966 S41(2)

Native Title Act (1993) (Cth) Ss 29, 31, 32, 35, 61, 75, 76, 77, 107, 108, 109, 110, 123, 124, 125, 130, 144, 145, 150, 233, 237

Cases:
Bendigo Bank v Williams (2000) 98 FCR 377
Brayson Motors Pty Ltd (In liq) v Commissioner for Taxation (1985) 156 CLR 651
Coney v Choyce [1975] 1 WLR 422
Dorothy and Thelma Tucker/Western Australia/Gold Partners Ltd WO00/393, Member Sosso, 24 August 2001

Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty

Co Ltd (1911) 12 CLR 398
Formosa v Secretary, Department of Social Security (1998) 46 FCR 117
Hamilton v Minister for Immigration, Local Government and Ethnic Affairs (1993) 48
FCR 20
Hilti (Australia) Pty Ltd v Millard (1997) 78 FCR 453
Howard v Secretary of State for the Environment [1975] QB 235
Hunter Resources v Melville (1988) 164 CLR 234
Kanak v National Native Title Tribunal (1995) 61 FCR 103
Kleinwort Benson Australia Ltd v Crowl (1998) 165 CLR 71
Liverpool Borough Bank v Turner (1861) 30 LJ Ch 379
Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467
Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120
Najarian v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 695
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595
Northern Territory v Lane (1995) 59 FCR 332
Nugent v Brialkim Pty Ltd (1985) 61 ALR 725

Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Northern Territory v Ward

Details

AGLC: Northern Territory v Ward [2001] NNTTA 163
Case: [2001] NNTTA 163
Decision Date: 21 December 2001

CaseChat Overview and Summary

The Northern Territory government brought an action against Ward in the Federal Court of Australia. The dispute centred on the applicability of the expedited procedure in the determination of native title claims, specifically regarding the right to negotiate over future acts that might affect native title. Ward objected to the use of the expedited procedure, asserting that procedural irregularities in the objection inquiry process warranted a full native title determination. The court was tasked with determining whether the objections raised by Ward were valid and whether the procedural irregularities were significant enough to preclude the use of the expedited procedure.
The court examined the statutory and regulatory provisions governing the right to negotiate and the objection inquiry process. It considered whether Ward's objections were valid and whether the procedural irregularities were substantial enough to warrant a full native title determination. The court also assessed the type of evidence that could be accepted in the objection inquiry process and whether the acceptance of forms lodged complied with statutory and regulatory provisions. Ultimately, the court had to decide whether the objections raised by Ward warranted the use of the full native title determination process or if the expedited procedure was appropriate.
The court found that the objections raised by Ward were valid but did not reach the level of procedural irregularities that would preclude the use of the expedited procedure. It concluded that the procedural irregularities did not significantly affect the outcome of the objection inquiry process. The court also determined that the type of evidence accepted in the objection inquiry process was appropriate and that the acceptance of forms lodged complied with statutory and regulatory provisions. Consequently, the court ruled that the expedited procedure was appropriate in this case and did not necessitate a full native title determination.
As a result of the court's decision, the Northern Territory government was permitted to proceed with the determination of native title claims using the expedited procedure. Ward's objections were considered, but the court found that they did not warrant a full native title determination. The court's decision upheld the use of the expedited procedure in cases where native title claims are determined, provided that procedural irregularities do not significantly affect the outcome of the objection inquiry process.

Orders