Peter Waterloo on behalf of the Larru & Waterloo groups and Kathleen Parry & Ors for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples/Northern Territory/Ausquest Ltd and Corporate Developments Pty Ltd
[2002] NNTTA 233
•14 November 2002
NATIONAL NATIVE TITLE TRIBUNAL
Peter Waterloo on behalf of the Larru & Waterloo groups and Kathleen Parry & Ors for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples/Northern Territory/Ausquest Ltd and Corporate Developments Pty Ltd, [2002] NNTTA 233 (14 November 2002)
Applications No: DO 02/66 & DO 02/67
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
PETER WATERLOO on behalf of the Larru & Waterloo groups (native title party)
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KATHLEEN PARRY & ORS for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples (native title party)
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THE NORTHERN TERRITORY OF AUSTRALIA (government party)
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AUSQUEST LTD (grantee party)
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CORPORATE DEVELOPMENTS PTY LTD (grantee party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: Mr John Sosso
Place: Brisbane
Date: 14 November 2002
Catchwords: Native title – future act – proposed grant of exploration licence expedited procedure application – failure to comply with Directions – objection application dismissed.
Legislation:Native Title Act 1993 (Cth) s148(b).
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
[1] On the 20 March 2002, the government party gave notice under section 29 of the Native Title Act 1993 (Cth) of its intention to grant the following Exploration Licence Applications:
ELA 22791 to Ausquest Ltd (‘grantee party’) and
ELA 10140 to Corporate Developments Pty Ltd (‘grantee party’).
The notice included a statement that the government party considered the grants attracted the expedited procedure.
[2] On 22 July 2002, Peter Waterloo on behalf of the Larru & Waterloo Groups (‘native title party’) and Kathleen Parry & Ors for the Wagiman, Ngangiwumeri, Malak Malak, and Kamu Peoples (‘native title party’) each lodged a Form 4 (Objection to inclusion in an Expedited Procedure Application) with the Tribunal.
Relevant Facts
[3] On 30 July 2002, Deputy President Sumner issued the following directions to the parties in each of the expedited procedure objection applications;
On or before 7 November 2002 the State is to provide to the Tribunal, the objector and the grantee a statement of contentions and documents relevant to the Inquiry including:
(a)a topographical map of scale 1: 100,000 marked with
ithe areas of the licence/s and the location of registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989; and
iiboundaries of various tenures of land within and overlapping the boundaries of the tenement with details of the nature of each such tenure.
(b)the details of any Aboriginal community within and in the vicinity of the licence/s;
(c)the details of the registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989; and
(d)Mining Tenement documents, including:
icopies of the application for the licence/s;
iicopies of the proposed Schedule of Endorsements and Schedules of Conditions;
iiidetails of any current mining tenement covering the same area and whether it was the subject to the right to negotiate provisions of the Native Title Act; and
ivdetails of available prior mining tenements granted over the same area including the date of the grant and the date of expiry.
On or before 14 November 2002 the native title party shall provide the following to the Tribunal and each other party:
(a)a statement of contentions.
Statement of contentions to include:
· a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area; and
· a statement of the community or social activities of the native title party that it is contended is likely to be interfered with directly by the grant of the tenement.
(b)a copy of each document relevant to the Inquiry (including any affidavit to be relied on).
Documents claimed to be of a confidential nature are to be placed in a separate sealed envelope, marked “Confidential” and provided to the Tribunal with a list (which is provided to the other parties) indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal; and
(c)if a request is made for an oral hearing, a statement of the evidence to be given by any witness for the native title party and the details of where the party proposes that the evidence be heard.
On or before 21 November 2002 the grantee party shall provide the following to the Tribunal and each other party:
(a)a statement of contentions; and
(b)a copy of each document relevant to the Inquiry(including any affidavit to be relied on).
Documents claimed to be of a confidential nature are to be placed in a separate sealed envelope, marked “Confidential” and provided to the Tribunal with a list (which is to be provided to the other parties) indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal; and
(c)a statement of the evidence to be given by any witness for the grantee party and the details of where the party proposes that the evidence be heard.
On or before 28 November 2002 each party may reply to the contentions made pursuant to Directions (1), (2) and (3).
A listing hearing (if necessary) will be held on 28 November 2002.
Liberty is given to apply to vary these directions or for a relisting of this hearing.
Parties are asked to note that:
·if the objector (the native title party) fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal, the Tribunal may dismiss the application (s 148(b) Native Title Act 1993 (as amended)); and
·a copy of any correspondence, e-mail or document provided to the Tribunal by any party must be provided simultaneously to every other party, unless there are any issues of confidentiality which arise.
·As far as practicable parties are to provide evidence in documentary form (see paragraph 3.14 of the Procedures under the Right to Negotiate Scheme issued by the Tribunal on 20 April 2000 and in particular para 3.14.5).
[4] On 10 October 2002, a status conference was held with the parties in DO 02/66 – ELA 22791. The grantee party indicated that it had received a copy of a draft agreement from the Northern Land Council (“NLC”) and that negotiations with the NLC were proceeding. However, he advised that an agreement was unlikely within the directions timeframe, and that the directions should stand.
[6] On 12 August 2002, the grantee party in DO 02/67 – ELA 10140, forwarded to the Tribunal a “Request to Vacate” the Preliminary Conference. The request was not supported by the other parties. Mr Provins, the representative of the grantee party, also indicated to the Tribunal that there was little likelihood of an agreement with the Northern Land Council. All parties to the objection application agreed that the directions should stand as made.
[7] On 15 October 2002, Deputy President Sumner appointed me as the Member to constitute the Tribunal for the purposes of these expedited procedure objection applications.
[8] On 6 November 2002, the government party lodged a Statement of Contentions in each of these matters and advised the following at [23]-[26];
“[23] It is apparent from Map A that all of the land area comprised within the proposed licence area has previously been the subject of previous mineral exploration tenures (“minerals tenures”). Following the decision of the High Court in Western Australia V Ward(2002) 191 ALR1 (“Ward”) the effect of the Racial Discrimination Act 1975(Cth). (“RDA”) upon minerals tenures has been clarified. In summary, the grant of minerals tenures fell into the first category identified by the majority in Ward at [108]. That is the Mining Act 1980 (NT) provides for the payment of compensation arising from the grant of then minerals tenures to existing landholders (see s. 174B-Mining Act. In these circumstances the RDA operates to found a right to compensation for any native title holders for whom provision for compensation is not specifically made under the terms of the Mining Act. (Subsequent to the passage of the NTA such compensation is recoverable in accordance with the provisions set out in Division 5 thereof).
[24] However, the creation of the right to compensation under the RDA does not serve to invalidate the grant of a minerals tenure if this grant occurred before the passage of the NTA. Rather the grant of minerals tenures serves as a valid extinguishment of any subsisting native title to the extent of any inconsistency between the rights granted under the minerals tenure and any native title rights (or at least those native title rights not previously extinguished by the grant of the underlying pastoral leases).
[25] In these circumstances the grant of a further minerals tenure cannot effect any further extinguishment of native title because to the extent that native title may be inconsistent with the minerals tenures it has already beenvalidly extinguished. Further, there can be no effect on the enjoyment of such rights as they are necessarily extinguished.
[26] As such the grant of the proposed licence cannot constitute a future act pursuant to s.233 of the NTA. Accordingly, the Government Party submits it is open to the Tribunal to dismiss the objection pursuant to s148(a).”
[9] On 11 November 2002, (DO 02/67) and 14 November 2002 (DO 02/66) Mr Mark Rumler, Solicitor representing each native title party advised the Tribunal as follows:
“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.”
[10] On 14 November 2002, I convened a Listings Hearings for these matters and each of the parties addressed the Tribunal.
[11] During the hearings Mr Rumler re-iterated that there were no prospects of the native title parties complying with the Directions made and did not contest the government party’s submission that it would be appropriate to dismiss the expedited procedure objection applications pursuant to section 148(b).
[12] Having heard from the parties, I directed that Directions be amended to provide that each native title party file and serve its Contentions and related documents in these matters, by close of business on 14 November 2002 and if there was a failure to do so, the expedited procedure objection applications would be dismissed pursuant to section 148(b). No party objected to this course of action.
[13] Section 148(b) empowers the Tribunal to dismiss an application at any stage of an inquiry if the applicant fails within a reasonable time to either proceed with the application or comply with a Direction of the Tribunal. In this instance the native title party informed the Tribunal that there were no prospects of complying with the Directions in these matters, and in such circumstances it is appropriate to make a “springing” or “guillotine” direction. As each native title party has failed to comply with Direction (1) in DO 02/66 and DO 02/67, namely providing to the Tribunal and other parties its statement of contentions and related documents, Direction (2) (d) has been activated and the expedited procedure objection applications are dismissed. This Decision then, is formal only as the ‘springing’ directions made on 14 November 2002 require no further action. Nonetheless as the dismissal of an expedited procedure objection inquiry pursuant to section 148(b) is a serious matter it is important to set out the background to the dismissals.
Decision
[14] Each native title party has failed to comply with a Direction of the Tribunal and accordingly the objection applications in relation to ELA 22791 and ELA 10140 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).
Mr John Sosso
Member
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