Roy Dixon (on behalf of the Karranjini, Lija, Anthony Lagoon families, Puzzle Creek families, Nguralinji-Jumbarana & Mijibayu groups) (DC02/1)/Northern Territory/De Beers Australia Exploration Limited

[2002] NNTTA 111

NATIONAL NATIVE TITLE TRIBUNAL

Roy Dixon (on behalf of the Karranjini, Lija, Anthony Lagoon families, Puzzle Creek families, Nguralinji-Jumbarana & Mijibayu groups) (DC02/1)/Northern Territory/De Beers Australia Exploration Limited, [2002] NNTTA 111 (19 June 2002)

Application No: DO02/43

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

-and-

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

Roy Dixon (on behalf of the Karranjini, Lija, Anthony Lagoon families, Puzzle Creek families, Nguralinji-Jumbarana & Mijibayu groups) (DC02/1) (Native Title Party)

-and-

The Northern Territory of Australia (Government Party)

-and-

De Beers Australia Exploration Limited (Grantee Party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Prof. Douglas Williamson QC
Place:  Darwin
Date:  19 June 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 28 November 2001, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant EL/22991 to De Beers Australia Exploration Limited (‘the grantee party’) and included in the Notice a statement that it considered that the grant attracted the expedited procedure.

1. On 28 March 2002, Roy Dixon (on behalf of the Karranjini, Lija, Anthony Lagoon families, Puzzle Creek families, Nguralinji-Jumbarana & Mijibayu groups) (‘the native title party’) made an expedited procedure objection application to the Tribunal.

[3] On 10 April 2002, on hearing submissions and with the consent of all the parties, the Tribunal directed:

1. On or before 18 July 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.

2. On or before 25 July 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.

3. On or before 1 August 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.

4. On or before 8 August 2002 each party may reply to the contentions made pursuant to Directions (1), (2) and (3).

5. A listing hearing (if necessary) will be held on 12 August 2002.

6. Liberty is given to apply to vary these directions or for a relisting of this hearing.

7. 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).

Relevant Facts

[4] By letter dated 23 May 2002 Mr Ron Levy, Principal Legal Officer for the Northern Land Council , informed the Tribunal as follows;

“We, as solicitors acting for the objectors, are unable to comply with the Tribunal’s orders for the filing of contentions and other material. The reason we are unable to comply with those orders is that the body responsible for funding, the NLC, is no longer prepared to provide resources for compliance with those orders. The reason the NLC has made this funding decision relates to the alternative process now available under the Memorandum of Understanding between De Beers Australia Exploration Limited and the NLC.
However, notwithstanding the limitations which have now been placed on the funding available to us, we remain solicitors on the record for the objectors. Accordingly, pursuant to our ethical obligations we are obliged to inform the Tribunal of the funding limitation so that such action as is appropriate can be taken. We anticipate that the Tribunal will call the relevant matters on for a hearing and determine the objections. We accept that this is the appropriate course of action for the Tribunal to take, given our advice regarding these matters”.

[5] On 29 May 2002 the Tribunal issued further directions that the existing directions be vacated and the following directions be substituted;

1. On or before 5 June 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)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.

1. If the native title party does not comply with direction (1) by 4.30pm on 5 June 2002, the application shall forthwith stand dismissed by the Tribunal pursuant to s.148(b) of the Native Title Act1993 (Cth).

1. Liberty to apply for a further listing hearing if necessary.

[6] The native title party has failed to comply with Direction (1) as directed or at all.

Decision

1. The applicant (native title party) has failed to comply with a Direction by the Tribunal in the circumstances referred to herein, and accordingly the expedited procedure objection application in respect of ELA 22991 is dismissed pursuant to
   s 148(b) of the Native Title Act 1993 (Cth).

Prof. Douglas Williamson QC
19 June 2002