Noy v Northern Territory
[2003] NNTTA 37
•25 February 2003
Reported at (2003) 174 FLR 366
NATIONAL NATIVE TITLE TRIBUNAL
Arthur Que Noy & Ors (Wagiman, Warai and Kamu)/ Northern Territory/Northern Gold NL, [2003] NNTTA 37 (25 February 2003)
Application No: DO02/82
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an Inquiry into an expedited procedure objection application
Arthur Que Noy and Others on behalf of the Wagiman, Warai and Kamu Peoples (native title party)
-and-
Northern Territory of Australia (government party)
-and-
Northern Gold NL (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 25 February 2003
Hearing date: Nil
Native title party Mr Mark Rumler, solicitor for the Northern Land Council
Government party: Mr Matthew Storey, Solicitor for the Northern Territory
Grantee party: Mr John Clarke of Wanati Pty Ltd
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection application – failure to proceed with application – objection application dismissed.
Legislation:Native Title Act 1993 (Cth) ss 29, 148
Cases: Beard v Telstra Corporation Ltd (1999) 57 ALD 376
Dixon v Northern Territory (2002) 169 FLR 103
Guse v Comcare (1997) 25 AAR 477
Re Greening and Repatriation Commission (1998) 52 ALD 376
Roy Dixon/Northern Territory/Plenty River Corporation Ltd DO01/50, unreported, Member Stuckey-Clarke, 10 December 2001
Western Australia v Ward (1996) 70 FCR 264
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On the 15 May 2002, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant an exploration licence EL/23432 to Northern Gold NL (‘the grantee party’) and included a statement that it considered this act attracted the expedited procedure.
On 16 September 2002, Arthur Que Noy on behalf of the Wagiman, Warai and Kamu Peoples (‘the native title party’) lodged a Form 4 (Objection to inclusion in an expedited procedure application) with the Tribunal.
Native title determination application “Douglas North” DC 01/23, was lodged with the Federal Court on 13 March 2001 and entered on the Register of native title claims on 25 October 2001.
Relevant Facts
On 25 September 2002, President Neate issued standard directions to the parties for the supply of material to this inquiry. These directions allowed for a 16 week period of negotiations to see if agreement could be reached between the parties on the grant of the exploration licence before the filing of contentions. The compliance dates were – Government party 24 February 2003; native title party 3 March 2003.
At the Preliminary Conference on 10 October 2002, all parties agreed to let the directions stand. The compliance dates for those directions had been extended to allow for the Christmas/New Year/Wet season layoff period.
A Status Conference was held on 9 December 2002 at which time the native title party and the grantee concluded that the matter should proceed to Inquiry, not-with-standing the continuing efforts of the parties to negotiate an agreement in all Northern Gold NL matters.
On 16 December 2002, Deputy President Sumner, as delegate of the President, appointed me to constitute the Tribunal for the purpose of this expedited procedure objection inquiry
On 21 February 2003, Mr Mark Rumler Solicitor for the native title party wrote to the Tribunal in the following:
”I confirm that in relation to the matter, the Native Title Party will not be filing contentions by the current due date of 3 March 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 objection 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.”
Mr Matthew Storey, Solicitor for the Northern Territory responded as follows:
“I write in response to correspondence received today regarding this matter from Mr Rumler representing the native title party. Mr Rumler advises that the native title party will not be filing contentions in this matter in accordance with the directions made by President Neate on 25 September 2002. Mr Rumler also advises that the native title party would not seek to make any submission on an application to dismiss the Objection.
Given the avowed intent of the native title party not to comply with the President’s directions, and in keeping with the practice of the Tribunal in these circumstances, I make application to dismiss this application pursuant to s148(b).
Please do not hesitate to contact me with regard to this application if need be.”
The Law
[10] The Tribunal is empowered by section 148 to dismiss an application at any stage of an inquiry if either the Tribunal is satisfied that it is not entitled to deal with the application (s148(a)) or an applicant fails within a reasonable time to either proceed with the application or to comply with a direction (s148(b)).
[11] Clearly the Tribunal is entitled to deal with the application, and, further, the native title party has not yet failed to comply with the Directions that were made by President Neate. The issue is whether, by plainly indicating that the expedited procedure objection application will not be prosecuted and that the native title party will not be complying with the Directions of President Neate, this avowed refusal to comply enlivens the Tribunal’s power to dismiss pursuant to section 148(b).
[12] The Tribunal has previously determined that an avowed refusal by an objector to comply with Directions that have been properly made, can provide a sufficient basis for dismissal of an objection – see Roy Dixon/Northern Territory/Plenty River Corporation Ltd DO01/50, unreported, Member Stuckey-Clarke, 10 December 2001 at [12] and Dixon v Northern Territory (2002) 169 FLR 103 at 107.
[13] The Tribunal is always very cautious about exercising its power to dismiss an expedited procedure objection application. While the power to dismiss is expressed in broad terms, the Tribunal is conscious that by dismissing such an application a native title party has potentially been deprived of the valuable right to negotiate which is the centrepiece of the exploration and mining future act regime. Any perusal of the many determinations of this Tribunal will reveal that various Members have made a conscious effort to make and remake Directions to enable the parties both the maximum time to reach a negotiated outcome and also, when such negotiations are fruitless, to comply with the Directions made. Members are fully aware that many native title parties and small mining companies have limited resources, and when government parties issue multiple section 29 notices, representative bodies are placed under great strain. Subject to the overriding necessity for expedited procedure inquiries to be conducted in a prompt and informal manner, Members use their best endeavour to ensure that the resource limitations and other difficulties of the parties are given proper weight.
[14] In the past the Federal Court has interpreted provisions of a similar nature to section 148(b) in a restricted manner. A similar provision is section 42A(5) of the Administrative Appeals Tribunal Act 1975. The Federal Court has held that this power should be used sparingly and as a decision of last resort. Moreover it should only be invoked after the non-complying party has been given an opportunity to explain why non-compliance has occurred – see Guse v Comcare (1997) 25 AAR 477 at 480 per Burchett J. Failure to give a non-complying party such an opportunity is potentially fatal to the exercise of the power – Re Greening and Repatriation Commission (1998) 52 ALD 110. The Federal Court has even determined that before this power is exercised it must be manifest that the relevant party has not just been dilatory but has intentionally failed to proceed with an application – see Beard v Telstra Corporation Ltd (1999) 57 ALD 376.
[15] In this instance, the Tribunal is not dealing with the second limb of section 148(b), namely non-compliance with directions, but with question of whether the native title party has failed within a reasonable time to proceed with the application. Here it is plain that the native title party has no intention to proceed with the application and to comply with Directions. It has unambiguously indicated to the Tribunal that it will not be filing contentions and that it has no objection to the Tribunal dismissing the application.
[16] In the past I have dealt with similar situations by amending the Directions so that the first party to comply will be the native title party and inserting a guillotine provision, such that if there is non-compliance the application will be automatically dismissed. In doing so, reliance has been placed on the second limb of section 148(b). However, I am of the view that if a native title party indicates that it will not be complying with the Directions, does not seek an adjournment and consents to the dismissal of the application, that there is proper scope for dismissal pursuant to the first limb of section 148(b). In such a situation it is clear that the native title party has and will not be proceeding with the expedited procedure objection application. Accordingly it is open to the Tribunal, once it has been informed of this state of affairs, and on the basis of an avowed intention not to proceed with the application, to dismiss the application forthwith pursuant to the first limb of section 148(b). The test is whether, at the time when the Tribunal is considering the exercise of the dismissal power, the native title party has demonstrated clearly and unconditionally that it will not be proceeding with its application. If such a clear state of affairs exists, and there is no opposition to the invoking of section 148(b) by any party, then the Tribunal is entitled to forthwith dismiss the application even though there has technically been no failure by the native title party to comply with Directions, at that point in time.
[17] In this matter I am satisfied that there are no realistic prospects of the native title party complying with the current Directions or any amended Directions. I also take into account that this is an expedited procedure objection inquiry, and the Tribunal is required to make a determination “as speedily as possible” per Lee J Western Australia v Ward (1996) 70 FCR 265 at 278. Accordingly, I am satisfied that the applicant has not and does not intend to, within a reasonable time, proceed with the application.
Determination
The native title party has failed within a reasonable time to proceed with the application, and accordingly the expedited procedure objection application in relation to ELA 23432 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).
John Sosso
Member
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