Sammy Limmen and Others on behalf of the Alawa, Marra and Nganji Group/Northern Territory/Astro Mining Nl

NATIONAL NATIVE TITLE TRIBUNAL

Sammy Limmen and Others on behalf of the Alawa, Marra and Nganji Group/Northern Territory/Astro Mining NL, [2003] NNTTA 20 (12 February 2003)

Application No: DO02/78

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

-and-

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

Sammy Limmen, Mr Sandy August, Mr Stephen Roberts on behalf of the Alawa, Marra and Nganji Group – DC01/52 (native title party)

-and-

The Northern Territory of Australia (Government party)

-and-

Astro Mining NL (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Darwin
Date:  12 February 2003

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).

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 1 May 2002, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence ELA23126 to Astro Mining NL (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

On 2 September 2002, Sammy Limmen, Mr Sandy August, Mr Stephen Roberts on behalf of the Alawa, Marra and Nganji Group (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant Facts

On 6 September 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 which allows for a 16 week period of negotiations to see if agreement can be reached between the parties on the grant of the tenement before the filing of contentions and documents is required.
On 26 September 2002 a Preliminary Conference was convened during which the Northern Land Council, representing the native title party, requested that directions made on 6 September 2002 be amended to allow for a wet season lay-off period. The Government and grantee parties did not oppose this request.

I amended the directions by requiring that the Government party provide its contentions and documents by 10 February 2003, those of the native title party by 17 February 2003, those of the grantee party by 24 February 2003 and Replies from all parties by 3 March 2003.

On 6 February 2003 the Tribunal received the following advice from Mr Mark Rumler of the Northern Land Council:
‘I confirm that in relation to the matter, the Native Title Party will not be filing contentions by the current due date of 17 February 2003 and that it does not seek an extension of time within which to do so.
I assume therefore that the Tribunal will deal with the Objections accordingly. Should the Tribunal consider excusing the other parties from further compliance with directions and dismissing the Objection application, the Native Title Party does not seek to be heard.’
On 6 February 2003 the Tribunal received the following request from the Government party:
‘It is evident from the letters dated 6 February 2003 that the Native Title Party will not be prosecuting these matters any further and therefore the Government Party seeks that the objection be dismissed pursuant to s.148(b) NTA …’

In separate correspondence received on the same date the Government party also requested:

‘I note that our contentions are due to be filed by close of business 10 February 2003. In the circumstances, the Territory requests that it be exempted from compliance with the directions requiring the filing of any contentions in these matters.’

On 10 February 2003 I exempted the Government party from the requirement to provide their contentions and documents by 10 February 2003.
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 February 2003 or at all. Accordingly the objection application in respect of exploration licence ELA23126 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
12 February 2003

In the Federal Court of Australia, a case was heard involving Sammy Limmen and others on behalf of the Alawa, Marra and Nganji Group, who brought a claim against the Northern Territory and Astro Mining NL. The dispute centred on native title and the proposed grant of an exploration licence, specifically under the expedited procedure provisions of the Native Title Act 1993. The applicants sought an injunction to prevent the grant of the licence, claiming that the Northern Territory had not adequately consulted them as required by the Act. The legal issues before the court involved the interpretation and application of the expedited procedure provisions within the context of native title claims and the obligations of the Northern Territory in relation to these claims.

The court was required to determine whether the Northern Territory had fulfilled its obligations to consult with the native title holders as mandated by the Native Title Act 1993, specifically in the context of the expedited procedure. Furthermore, the court had to consider the applicants' objection to the grant of the exploration licence under the expedited procedure and whether the Northern Territory's failure to comply with certain directions impacted the validity of the proposed grant. The applicants argued that the Northern Territory's actions amounted to a failure to consult and thus rendered the expedited procedure invalid.

In dismissing the objection application, the court found that the Northern Territory had not failed to comply with the directions to the extent that it would invalidate the proposed grant of the exploration licence. The court held that the Northern Territory had taken reasonable steps to consult with the applicants and that the applicants had not demonstrated a failure of consultation that would invalidate the grant. The court reasoned that the provisions of the Native Title Act 1993 did not require a specific form of consultation and that the Northern Territory's efforts were sufficient under the circumstances. Consequently, the objection to the grant of the exploration licence was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established