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Silver v Northern Territory

Silver v Northern Territory

Case [2002] NNTTA 18 1 February 2002

Native Title

Judicial Review

Legitimate Expectation

Proportionality

Indigenous Peoples & Native Title Law

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Reported at (2002) 169 FLR 1

NATIONAL NATIVE TITLE TRIBUNAL

Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd, [2002] NNTTA 18 (1 February 2002)

Application No: DO01/13

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

- and -

IN THE MATTER of a Future Act Determination Application

Moses Silver, Ishmael Andrews & Sammy Bulabul (Native Title Party)

- and -

Northern Territory of Australia (Government Party)

- and -

Ashton Exploration Australia Pty Ltd (Grantee Party)

INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:       John Sosso
Place:             Brisbane
Date:              1 February 2002

Hearing dates: 10, 22 October, 5, 13, 16, 30 November 2001

Government Party: Mr Daniel Lavery, Solicitor for the Northern Territory

Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council

Grantee Party: Mr Jeff Wilkie

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – protocols for guidance of parties – parties contentions - whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – major disturbance to land or waters - protection under existing legislation – risk of environmental or cultural disturbance remote – an act which attracts the expedited procedure.

Legislation: Aboriginal Land Rights (Northern Territory) Act1976 (Cth) ss 3, 64.

Mining Act (NT) ss 23, 24, 24A, 26, 28, 29, 29A, 166, 166A.
Native Title Act 1993 (Cth) ss 29, 32, 44H, 77, 109, 146, 237.
Northern Territory Aboriginal Sacred Sites Act (NT) ss 20, 22, 30, 32, 33, 34, 35, 37.
Pastoral Land Act (NT) s 38.

Cases: Cheinmora v Striker Resources NL (1996) 142 ALR 21

Dann v Western Australia (1997) 74 FCR 391
Hollow v State Planning Authority (1980) 45 LGRA 39
Jack Dann/Western Australia/GPA Distributors Pty Ltd WO95/19 (No 2) Hon C J Sumner, 10 June 1997
Little v Western Australia [2001] FCA 1706
Liverpool Borough Bank v Turner (1861) 30 LJ Ch 379
Mabo v Queensland (No 2) (1992) 175 CLR 1
Maureen Young/Western Australia/South Coast Metals Pty Ltd WO00/402 Member Sosso, 7 June 2001
National Council of Jewish Women v North York (1961) 30 DLR (2d) 402
North Ganalangja Aboriginal Corporation v Queensland (1996) 185 CLR 595
Paul Cox & Ors/Western Australia/Stirling Resources NL, WO97/97, 27 October 1997 Hon C J Sumner
Re Cheinmora (1996) 129 FLR 223
Re Irruntyju-Papulankutja Community (1995) 1 AILR 222
Re Nyungah (1996) 132 FLR 54
Re Waljen People (1995) 1 AILR 227
Risk v Native Title Tribunal [2000] FCA 1589
Shaw v Wolf (1998) 83 FCR 113
Smith v CRA Exploration Pty Ltd (1996) 133 FLR 251
Smith v Western Australia (2001) 108 FCR 442
Tilmouth v Northern Territory (2001) 109 FCR 240
Wandarang People v Northern Territory (2000) 104 FCR 380
Ward v Western Australia (1996) 69 FCR 208
Western Australia/Winnie McHenry WO98/125, 28 July 1999 Deputy President Franklyn
Western Australia v Smith (2000) 163 FLR 32
Western Australia v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Silver v Northern Territory

Details

AGLC: Silver v Northern Territory [2002] NNTTA 18
Case: [2002] NNTTA 18
Decision Date: 1 February 2002

CaseChat Overview and Summary

The parties to the case were Silver and the Northern Territory. The dispute involved the proposed grant of an exploration licence by the Northern Territory to Silver, which led to an objection application under the expedited procedure of the Native Title Act. The case was heard in the Federal Court of Australia. The central issue before the court was whether the proposed act of granting an exploration licence directly interfered with the community life of the native title holders, or interfered with areas and sites of particular significance, and whether it constituted a major disturbance to the land or waters, thereby attracting the expedited procedure for objection.

The court had to determine if the proposed exploration licence directly interfered with the native title holders' community life or affected areas and sites of significant cultural importance. Additionally, the court needed to assess if the exploration activities posed a major disturbance to the land or waters, and whether existing legislation provided adequate protection against environmental or cultural harm. The parties presented their contentions on these points, with Silver arguing that the risk of environmental or cultural disturbance was remote and the act did not warrant the expedited procedure.

The court found that the proposed act of granting an exploration licence did not directly interfere with the community life of the native title holders, nor did it interfere with areas and sites of particular significance. The court also determined that the risk of major disturbance to the land or waters was remote, and existing legislation provided adequate protection against potential environmental or cultural harm. Consequently, the court ruled that the proposed act did not attract the expedited procedure for objection. This decision was based on the evidence presented regarding the minimal impact of the exploration activities on the native title holders' rights and the surrounding environment.

The court's final orders were that the objection application by Silver was dismissed, and the proposed grant of the exploration licence to Silver by the Northern Territory was not subject to the expedited procedure. This ruling allowed the exploration licence to proceed without the need for additional procedural steps related to native title objections.

Orders