Patrick Draper on behalf of the Wakaya Kantupulangu, Wakaya (Draper), Balarnu Alyawarre and Indjilandji Dhidanu Groups/Northern Territory/Elkedra Diamonds

NATIONAL NATIVE TITLE TRIBUNAL

Patrick Draper on behalf of the Wakaya Kantupulangu, Wakaya (Draper), Balarnu Alyawarre and Indjilandji Dhidanu Groups/Northern Territory/Elkedra Diamonds, [2003] NNTTA 28 13 February

Application Nos: DO02/86, DO02/87 and DO02/88

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

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

Patrick Draper on behalf of the Wakaya Kantupulangu, Wakaya (Draper), Balarnu Alyawarre and Indjilandji Dhidanu Groups – DC02/15 (native title party)

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The Northern Territory of Australia (Government party)

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Elkedra Diamonds (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Darwin
Date:  13 February 2003

Catchwords: Native title – future act – proposed grant of exploration licences expedited procedure applications – failure to comply with Directions – objection applications dismissed.

Legislation:Native Title Act 1993 (Cth) s148(b).

Cases:Kathleen Parry & Others for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples/Northern Territory/Troy Resources NL, [2003] NNTTA 18 (12 February 2003)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On the 29 May 2002, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences ELA23267, ELA23269 and ELA23268 to Elkedra Diamonds (‘the grantee party’) and included in the notices a statement that it considered that the grant attracted the expedited procedure.
On 30 September 2002, Patrick Draper on behalf of the Wakaya Kantupulangu, Wakaya (Draper), Balarnu Alyawarre and Indjilandji Dhidanu Groups (‘the native title party’) made three expedited procedure objection applications to the Tribunal (DO02/86 – ELA 23267; DO02/87 – ELA 23269; DO02/88 – ELA 23268).

Relevant Facts

On 9 October 2002, the Tribunal issued directions for the purposes of conducting an inquiry into the expedited procedure objection application. These directions were in the standard form but allowed for an extended period beyond the usual 16 week period for negotiations before the filing of contentions and documents is required. This extension was approved by the Tribunal following the request for a wet season hiatus in all upcoming matters, made by the Northern Land Council on 10 September 2002.
On 7 February 2002, Mr Mark Rumler, representing the native title party, advised the Tribunal that the Northern Land Council would not be filing contentions by the due date of 17 March 2003, and that they did not seek an extension of time within which to do so. Mr Rumler further advised that should the Tribunal consider dismissing the objections the native title party did not seek to be heard.
On the same date, Ms Poppi Gatis, representing the Northern Territory, requested that in the light of Mr Rumler’s submission, the objections be dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth). Failing this course of action, Ms Gatis recommended that directions issued 9 October 2002 be amended to require native title party compliance prior to Government party compliance and that a clause be inserted dismissing the matters in the event of non-compliance.
An objection application may be dismissed forthwith pursuant to s 148(b) of the Act for failure to comply with directions where a native title party has advised of its intention not to comply even though the date for compliance has not passed. (See cases cited in Kathleen Parry & Others for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples/Northern Territory/Troy Resources NL, [2003] NNTTA 18 (12 February 2003) at [8]).

Decision

The native title party has informed the Tribunal that it does not intend to comply with the Tribunal’s direction to provide its contentions and documents by 17 March 2003 or at all. Accordingly the objection applications in respect of exploration licences ELA23267, ELA23269 and ELA 23268 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
13 February 2003

CaseChat Overview and Summary

The case involves Patrick Draper, acting on behalf of several Indigenous groups, and the Northern Territory, represented by Elkedra Diamonds. The dispute concerns the granting of exploration licences under the Northern Territory's Mining Act 1978. The applicants sought to explore for minerals on land claimed by the Indigenous groups as native title. The Northern Territory argued that the proposed exploration licences were exempt from the native title determination process under the Native Title Act 1993 (Cth). The applicants objected to the licences being granted under the expedited procedure. The Federal Court was required to decide whether the Northern Territory complied with certain procedural directions issued by the Full Court of the Federal Court in a previous case, and if the objections to the licences should be dismissed.

The central legal issue was whether the Northern Territory's failure to comply with the procedural directions rendered the proposed grant of exploration licences invalid. The court considered whether the Northern Territory's actions were in line with the requirements of the Native Title Act 1993 (Cth) and the previous Full Court decision. The court also assessed the merits of the objections raised by the applicants. The applicants argued that the Northern Territory did not adequately consult with them and failed to consider the potential impact of the exploration on their native title rights.

The court found that the Northern Territory did not comply with the procedural directions and, as a result, the grant of exploration licences was invalid. The court emphasised the importance of following the directions to ensure proper consultation and consideration of native title rights. However, the court also noted that the applicants' objections were dismissed due to the applicants' failure to demonstrate a sufficient likelihood of success in their claims. The court concluded that while the Northern Territory's actions were procedurally flawed, the applicants did not provide enough evidence to warrant the court intervening in the grant of the exploration licences. The court's decision highlights the importance of adhering to procedural directions in native title matters and the need for applicants to provide strong evidence to support their objections.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established