Tony Kenyon on behalf of the Warai Group/Northern Territory/Northern Gold NL
[2002] NNTTA 255
•23 December 2002
NATIONAL NATIVE TITLE TRIBUNAL
Tony Kenyon on behalf of the Warai Group/Northern Territory/Northern Gold NL, [2002] NNTTA 255 (23 December 2002)
APPLICATION NO: DO 02/71
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
TONY KENYON on behalf of the Warai Group (native title party)
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THE NORTHERN TERRITORY OF AUSTRALIA (government party)
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NORTHERN GOLD NL (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Mr John Sosso
Place: Brisbane
Date: 23 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 3 April 2002, the government party gave notice under section 29 of the Native Title Act 1993 (Cth) of its intention to grant Exploration Licence Application (ELA) 23270 to Northern Gold NL (‘grantee party’) and included a statement that it considered the grant attracted the expedited procedure.
[2] On 6 August 2002, Mr Tony Kenyon on behalf of the Warai Group lodged with the Tribunal a Form 4 (Objection to inclusion in an Expedited Procedure Application).
Relevant Facts
[3] On 8 August 2002, Deputy President Sumner issued the following directions to the parties in this expedited procedure objection inquiry:
On or before 21 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 28 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 5 December 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 12 December 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 12 December 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] Subsequently the Tribunal was informed that Mr Kenyon had died after the lodgement of the expedited procedure objection application. On 21 October 2002 each of the parties was written to by the Tribunal and (inter alia) the following matter was raised:
“Deputy President Sumner invites submissions from all parties on whether DO02/71 should be dismissed on the grounds that the Tribunal does not have jurisdiction to deal with the objection because there is no longer a registered native title claimant. Please refer to s30(2) of the Native Title Act.”
[5] On even date, the Mr Storey, on behalf of the government party, responded in the following terms:
“While Mr Kenyon’s name continues to appear on the Register, since his demise he has ceased to be a ‘person’ and thus cannot constitute a native title party for the purposes of the current objection. As there is no objector in the current proceedings the objection must be dismissed.”
[6] By email dated 22 October 2002 Mr Mark Rumler of the Northern Land Council confirmed that Mr Kenyon had passed away on or about 27 August 2002. He further contended that the Objection was sustainable and did not necessarily fail, pending an amendment to the Form 4 substituting a new Objector. He made the following submission:
“Native title is a communal title. Both the underlying native title application (DC12/13) per se and the Objection are brought on behalf of the Warai people. The NTA could not be construed to have the effect that where a sole applicant or Objector dies the application and Objection proceedings necessarily cease from that moment to be on foot.
Sub-section 30(4) contemplates the replacement of a registered native title claimant and provides for the replacement by that person also as the native title party.
We are capable of taking instruction by or on behalf of the Warai for the purposes of substituting pursuant to NTA s 64(5) the deceased applicant with another person. We will also seek a direction substituting that person as the native title party in the within matter. We are currently considering the time that these processes may take and intend to advise accordingly at the SC (status conference) listed in this matter this Thursday 24 October.”
[7] Following this exchange, the Northern Land Council advised that it was receiving instructions on amending the native title application to substitute a new applicant to replace Mr Kenyon. A relatively short period of time was indicated. Mr Story, whilst not resiling from the above submission, nonetheless said that “the time period suggested by Mr Rumler for the replacing of the authorised applicant in claimant application DC02/13 appears quite reasonable if adhered to.”
[8] On 5 November 2002 Deputy President Sumner convened a status conference, the primary purpose of which was to deal with the above issue. After hearing from the parties, Deputy President Sumner determined that the objection was still valid and would provide written reasons for his decision. No party, apparently, made application for such reasons. In addition Deputy President Sumner also made new compliance dates to take account of the proceedings instituted to effect the replacement of Mr Kenyon with a new applicant.
[9] On 25 November 2002, Deputy President Sumner appointed me as the Member to constitute the Tribunal for the purpose of this expedited procedure objection inquiry.
[10] On 4 December 2002 Mr Rumler of the Northern Land Council, on behalf of the claim group, wrote to the Tribunal seeking “an extension of time within which to file the NTP’s contentions in the matter to Thursday 19 December 2002”. The following background material was provided by Mr Rumler:
“A notice of motion and affidavit in support seeking orders pursuant to s66B, or in the alternative, s64(5) of the NTA were filed with the Federal Court on the day of the listing hearing. The matter was listed for hearing before the Deputy Registrar of the Federal Court on 14 November 2002. At that hearing the Territory opposed the application and the matter was subsequently listed to be heard on 2 December 2002 by Mansfield J.
By letter dated 29 November 2002 under the hand of Kirsty Gowans, NLC legal officer, to the District Registrar advice was conveyed among other things that it was intended to hold a meeting with the Warai group for the purpose of filing a further amended application, supported by affidavit material and re-certified. The decision to conduct the matter in this manner has been based upon the desire to avoid any unnecessary legal argument and enable the matter to be dealt with expeditiously and, hopefully, unopposed. The letter further confirmed that the earliest date at which such a meeting of the Warai group could be held is Monday 14 December 2002. I am informed the date of Thursday 12 December 2002 has been set for this meeting to occur.
I am further informed that the matter has been adjourned off at the hearing of 2 December 2002 by consent in order to allow the meeting and the subsequent anticipated filing to occur.
We have not acquired further instruction for the purpose of filing affidavit evidence in support of the NTP’s contentions in the within matter. We anticipate being able to do so at the meeting. It is preferable that this meeting be conducted prior to the evidence being obtained. Any re-application of the registration test will, I understand, be undertaken by the relevant Delegate as a matter of priority but about 3 days may still be required to do so.
Accordingly, we seek an extension of time within which to file the NTP’s contentions in the within matter to Thursday 19 December 2002.”
[11] On 6 December 2002 I issued amended Directions for this matter, and, in particular, granted the native title party the extension of time that was sought.
[12] On 13 December 2002, Mr Rumler advised the Tribunal as follows:
“In this matter the Tribunal granted the Native Title party an extension of time to Thursday 19 December 2002, in order to file contentions.
However, on review, we do not propose to adduce further evidence in support of, nor seek to be heard further in relation to, the Objection.
The Native Title party respectfully submits that the Objection be determined on the papers already filed.”
[13] I convened a Listings Hearing on 20 December 2002 following a request from the government party that this matter not be dealt with on the papers. At the Listings Hearing, Mr Hughes, on behalf of the native title party, confirmed that there were no immediate prospects that the native title party could or would comply with the amended Directions that I made on 6 December 2002.
[14] Mr Story submitted that in these circumstances it was open to, and appropriate for, the Tribunal to dismiss the objection application pursuant to section 148(b). Mr Hughes did not oppose this submission.
[15] 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 it did not intend to submit evidence in support of the objection, nor seek to be heard further in this matter, and in such circumstances it is appropriate to dismiss the application.
Decision
The native title party has failed to comply with a Direction of the Tribunal and accordingly the expedited procedure objection application in relation to the grant of ELA 23270 to Northern Gold NL, is dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth).
Mr John Sosso
Member
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