Sammy Bulabul and Moses Silver and Others on behalf of the Ngalakan Group (DC01/64)/Northern Territory/Phelps Dodge Australia Pty Ltd

[2002] NNTTA 247

NATIONAL NATIVE TITLE TRIBUNAL

Sammy Bulabul and Moses Silver and Others on behalf of the Ngalakan Group (DC01/64)/Northern Territory/Phelps Dodge Australia Pty Ltd, [2002] NNTTA 247 (3 December 2002)

Application No: DO02/63

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

-and-

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

Sammy Bulabul and Moses Silver and Others on behalf of the Ngalakan Group  – DC01/64 (native title party)

-and-

The Northern Territory of Australia (Government party)

-and-

Phelps Dodge Australia Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Member Jennifer Stuckey-Clarke
Place:  Darwin
Date:  3 December 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 6 March 2002, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant ELA23092 to Phelps Dodge Australia Pty Ltd (‘the grantee party’) and included in the Notice a statement that it considered that the grant attracted the expedited procedure.

1. On 8 July 2002, Sammy Bulabul and Moses Silver and Others on behalf of the Ngalakan Group (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant Facts

1. On 12 July 2002, Deputy President Sumner issued the following directions to the parties in relation to these matters:

1. On or before 24 October 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 31 October 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 7 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.

4. On or before 14 November 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 14 November 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).

8. On 16 October 2002, the Grantee Party Representative Mr Greg McKay wrote to the Tribunal requesting an extension of two weeks to the directions, and stated;

   “Phelps Dodge requests an extension to current directions for Case DO02/63 (ELA 23092) of two weeks in order to finalise the access agreement with the NLC. We are now at the stage of presenting minor amendments to the agreement which we believe will achieve finalisation.”

9. On 16 October 2002, the native title party wrote to the Tribunal:

“We consent to this application. We assume it necessarily involves an extension to all relevant directions in this matter for the 2 week period.”

1. On 17 October 2002, the Tribunal received the following submission from the   Government Party:

“The Territory too is prepared to consent to the two week extension to directions in DO02/63 on the basis that directions 1 and 2 of DP Sumner’s directions of 12 July 2002 are reversed. This would effectively mean that the Objector would need submit materials, in the unlikely event that agreement is not reached, by 7 November, the Territory it’s materials by 14 November 2002. This then gives over three weeks for the agreement to be executed”

1. On 17 October 2002, the Tribunal granted an extension to the Directions as follows:

With reference to the above matter, the Tribunal has received a request from Phelps Dodge Australia Pty Ltd[ the grantee party] for a two week extension to Directions made 12 July 2002.  The extension will allow a pending agreement between the grantee party and the Northern Land Council to be finalised

Accordingly the Member has approved the extension.

Please note the following amended dates for compliance:

Direction (1) – Government Party – 7 November 2002

Direction (2) – Native Title Party – 14 November 2002

Direction (3) – Grantee Party – 21 November 2002

Direction (4) – Replies, all parties – 28 November 2002

Direction (5) - Listing Hearing – 5 December 2002, at a time to be advised

1. On 30 October 2002, the Tribunal receive a copy of an email from the Government Party to the Grantee Party requesting an update on the agreement negotiations between the Grantee and the native title party.

1. On 4 November the Grantee Party requested a further variation to directions stating:

   Phelps Dodge wishes to submit another request for an extension to directions for Case DO02/63 (ELA 23092) of a further two weeks in order to finalise the access agreement with the NLC.
   Phelps Dodge is likely to sign the draft access agreement with the NLC in the near future.

2. On 4 November 2002, the Government party advised the grantee party by email, with a copy to the Tribunal and other parties, in the following terms:

“We will support your application for a further extension of two weeks if Directions 1 and 2 are reversed. Otherwise, the Territory is content to abide the current directions and file and serve on Thursday this week”.

1. On 4 November 2002, the native title party advised the Tribunal that it supported the request by the grantee party for an extension of two weeks.

1. On 4 November 2002, after consideration of the submissions, the Tribunal wrote to the parties:

The Tribunal has now heard from all the parties in relation to the grantee party’s request for variation of the timetable. There has already been a two-week extension of the timetable. Further extensions are not to be lightly granted. However, in the circumstances, the Member has decided to vary the directions by one week in respect of all parties’ obligations to file evidence and contentions. However, the Listing Hearing remains set down for 5 December, 2002.

Please note the following amended dates for compliance;

Direction (1) - Government Party – 14 November 2002.

Direction (2) – Native Title Party – 21 November 2002.

Direction (3) – Grantee Party          28 November 2002.

Direction (4) – Replies -, all parties - 5 December 2002.

Direction (5) – Listing Hearing – 5 December, 2002.

1. On 14 November 2002, the Government party filed and served its contentions pursuant to Direction (1) made on 4 November 2002.

2. On 22 November 2002, the Tribunal received the following letter from the native title party:

“We advise that we have been unable to date to obtain sufficient instruction for the purpose of taking affidavit evidence in these matters and that there are no reasonable prospects for doing so within a reasonable time.”

1. On 22 November 2002, the Government Party wrote to the Tribunal stating:

   “The original Directions in this matter were made by Deputy President Sumner on 12 July 2002 and set out timeframes for the filing of materials by the parties.
   By letter dated 17 October 2002, the Tribunal advised that a two week extension had been made to these timeframes. This extension was requested by the Grantee Party (Phelps Ddodge) to allow time to finalise an access agreement between them and the NLC.

   By letter dated 4 November 2002, the Tribunal advised that the Directions were again varied to allow a further one week extension.  The dates for compliance were now:

Direction 1:  Government Party - 14 November 2002.

Direction 2:  Native Title Party - 21 November 2002.

Direction 3:  Grantee Party - 28 November 2002.

Direction 4:  Replies - 5 December 2002.

Direction 5:  Listing Hearing - 5 December 2002.

The Government Party filed its Contentions in compliance with the above time frames.
The Government Party has not, to date, received any material from the Native Title Party.  Can the Tribunal please confirm whether the Native Title Party has filed its materials in accordance with the time frames outlined above?”

1. On 22 November 2002, the Government Party made application to the Tribunal for the objection to be dismissed pursuant to S148 (b) of the Act, as follows:

The Northern Territory of Australia hereby makes application for the above mentioned objection application to be dismissed pursuant to s.148 (b) of the NTA.

As this morning's email advised, Direction 2 (as amended on 4 November 2002) required the Native Title Party to file its materials by 21 November 2002.  It did not do so.

In addition, this morning's correspondence from the Northern Land Council, under the hand of Mr Rumler, speaks of an inability 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".

In DO01/138 (George King/NT/BS May & PR Jones, 3 May 2002) Member Sosso stated; "When the Tribunal is confronted with a situation where a native title party is in breach of directions made, and indicates an unprepared ness or inability to remedy that breach and comply with the Directions, then there is proper scope for the tribunal to dismiss the application pursuant to section 148(b)." (at

[10])

It is submitted that given the facts in this matter, there is proper scope for the Tribunal to dismiss this application pursuant to section 148(b) of the NTA.

I note that a Listing Hearing has been scheduled for 5 December 2002.  Given the status of this matter, including the fact that this process has already been extended by three weeks, the Northern Territory would request that the Tribunal dispense with the planned Listing Hearing and dismiss the application forthwith. However, should the Tribunal require a Listing Hearing, the Territory would request that it be scheduled as soon as practicably possible.

1. On 22 November 2002, the native title party advised the Tribunal and the parties by email

;

“We do not object to the Government Party submission for dismissal pursuant to s148 (b) in these circumstances.”

1. On 25 November 2002, the Tribunal varied the direction as follows:

The Tribunal directs;

(1)The Grantee Party is not required to file contentions until further notice.

(2)        The Government Party is not required to file and serve any contentions 

in reply until further direction.

(3)The listing hearing will be held at 11:30am (cst) on 13 December 2002.

1. On 26 November 2002, the grantee party’s representative advised the Tribunal he would be unavailable for the Listing Hearing set down for 13 December 2002, and offered his apologies.

1. On 3 December 2002, a Listing Hearing was convened.

Conclusion

[21] The Government party has sought to have the matter dismissed for failure to comply with a direction of the Tribunal under s.148 (b) of the Act. The native title party has not opposed dismissal of the objection application on that basis.

Decision

The applicant (native title party) has failed to comply with a Direction by the Tribunal and notified the Tribunal of its inability to comply within a reasonable time and accordingly the objection application in respect of ELA 23092 is dismissed pursuant to s 148(b) of the Act.

J E STUCKEY – CLARKE
MEMBER