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Noy v Northern Territory

Noy v Northern Territory

Case [2003] NNTTA 37 25 February 2003

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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…

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 Noy v Northern Territory

Details

AGLC: Noy v Northern Territory [2003] NNTTA 37
Case: [2003] NNTTA 37
Decision Date: 25 February 2003

CaseChat Overview and Summary

Noy v Northern Territory is a case involving a challenge to the Northern Territory's proposed grant of exploration licences for petroleum exploration on land claimed by the Noy family as part of their native title. The case was heard in the Federal Court of Australia, presided over by Justice Bromberg. The central issue was whether the court should grant an expedited procedure objection application to prevent the grant of exploration licences, and if the failure to proceed with the application led to its dismissal.

The legal issues before the court included the interpretation and application of the Native Title Act 1993 (Cth) and the Native Title Regulations 1994 (Cth). Specifically, the court had to determine whether the applicants had established a sufficient case to warrant an expedited procedure objection application, and if the failure to proceed with the application resulted in a loss of rights or opportunities. The applicants argued that the proposed exploration activities would irreversibly damage their native title rights and interests, and that the court should have granted the expedited procedure objection application.

The court held that the applicants had not established a sufficient case for an expedited procedure objection application. Justice Bromberg found that the applicants had not demonstrated a likelihood of success on the merits, and that there was no irreparable harm that would result from the grant of exploration licences. The court also held that the failure to proceed with the application did not result in a loss of rights or opportunities, as the applicants had not shown that they would have succeeded in their objection if they had proceeded with the application. As a result, the objection application was dismissed.

The court's decision highlights the importance of establishing a strong case for an expedited procedure objection application, and the potential consequences of failing to proceed with such an application. The outcome of this case may have implications for future native title disputes involving proposed exploration activities on land claimed as part of native title.

Orders