Trevor Willy on behalf of the Kewulyi, Gunduburun and Barnubarnu Peoples/ Northern Territory/Rodney Johnston, Mega-Min Resources NL
[2002] NNTTA 136
•10 July 2002
NATIONAL NATIVE TITLE TRIBUNAL
Trevor Willy on behalf of the Kewulyi, Gunduburun and Barnubarnu Peoples/ Northern Territory/Rodney Johnston, Mega-Min Resources NL, [2002] NNTTA 136 (10 July 2002)
Application No: DO02/32
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an Inquiry into an expedited procedure objection application
Trevor Willy on behalf of the Kewulyi, Gunduburun and Barnubarnu Peoples (Native Title Party)
-and-
The Northern Territory of Australia (Government Party)
-and-
Rodney Johnston, Mega-Min Resources NL (Grantee Party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Deputy President, The Hon. E.M. Franklyn QC
Place: Darwin
Date: 10 July 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
On the 31 October 2001, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant EL/9719 to Rodney Johnston, Mega-Min Resources NL (‘the grantee party’) and included in the Notice a statement that it considered that the grant attracted the expedited procedure.
On 28 February 2002, Trevor Willy on behalf of the Kewulyi, Gunduburun and Barnubarnu Peoples (‘the native title party’) made an expedited procedure objection application to the Tribunal.
Relevant Facts
On 11 March 2002, the Tribunal issued the following Directions;
(1) On or before 20 June 2002 the Government party 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 area and location of the proposed tenement/s and the location of registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989 on or within the vicinity of the sites; and
iiboundaries of various tenures of land within or overlapping the boundaries of the tenement/s with details of the nature of each such tenure.
(b)the details of any Aboriginal community within and in the vicinity of the tenement/s;
(c)the details of the registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989; and
(d)Tenement documents, including:
icopies of the application for the proposed tenement/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 27 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 relevant significance in accordance with the native title holders traditions on or adjacent to the proposed 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 verified where possible by affidavit and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
On or before 4 July 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 verified where possible by affidavit and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
On or before 11 July 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 15 July 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).
·The expression tenement/s used herein and in subsequent directions in this matter includes, where appropriate, any exploration or other licence under the Mining Act (NT) , the subject of a notice issued under s29 of the Native Title Act.
On 2 July 2002, the Native Title party advised the Tribunal in writing;
“We advise we have been unable to date to obtain the execution of the Affidavit of Sanmmy Bulabul due to his undertaking of certain ceremonial functions out bush. We are attempting to arrange for the execution at the earliest opportunity.”
In the light of the above we seek an extension of time to 15 July 2002 in order to file and serve the Native Title Party’s contentions in this matter”.
Also on 2 July 2002, the Native Title party advised the tribunal in writing “we advise we have been unable to date to obtain instructions sufficient for the purposes of taking affidavit evidence in this matter and that there are no reasonable prospects in the future of doing so within a reasonable time”.
On 2 July 2002, the Government party advised in writing that it opposed the application for an extension of time, pointing (inter alia) to the date of lodgement of the objection application, its grounds and the date of the directions setting the time-frame for compliance, contending that the need for the evidence was apparent from the grounds of objection, that Mr Bulabul was a named objector, and so responsible for compliance, and that there had been ample time to prepare and arrange execution of his affidavit without interference with his other arrangements.
Subsequently on 2 July 2002, the Government party advised that as at midday that it had not received the Native Title party’s contentions due on 27 June 2002 and applied for dismissal of the objection application pursuant to s148(b) of the Native Title Act 1993, claiming also that the extension if granted would interfere with its planned work schedule.
The respective applications for extension of time and for dismissal were listed for hearing on 9 July 2002.
It is of some significance that on 24 May 2002, a status conference was held attended by the representatives of both the Government and Native Title parties. No application was made by either party to vary the directions of 11 March 2002 and a listing hearing was scheduled for 15 July 2002.
On 8 July 2002, the Native Title party advised the Tribunal in writing that an affidavit based on Mr Bulabul’s instructions was drafted on 8 April 2002 and that it was informed that a Northern Land Council officer based at Katherine, who is also a Commissioner for oaths, had made enquiries “on or about” 20 June 2002 as to Mr Bulabul’s whereabouts and was told he was involved in ceremonial duties at Mt Cat Station and was not contactable and reported that messages left by him were unanswered. Further, that the Katherine officer was subsequently informed that Mr Bulabul’s ceremonial duties appeared to have ended “on or about” 24 or 25 June 2002 and that he was returning to the Kewulyi community where he resides, where he would be involved in further ceremonial activities. The Native Title party also advised that since “about” the 24 or 25 June 2002, the Katherine officer was unable to obtain clear advice as to whether Mr Bulabul would be contactable at that community and that “on or about” 8 July 2002, he spoke directly to Mr Bulabul and confirmed he could execute his affidavit and that he intended to meet with him on the morning of 9 July 2002, to obtain its execution. The Kewulyi community was said to be about a 2-3 hour drive from Katherine.
On 9 July 2002, the two applications came on for hearing. Submissions were made by the parties in the course of which the Native Title party’s representative advised that he could not say whether or not there was a telephone at the Kewulyi community and the Government party representative advised that there was such.
Accepting that Mr Bulabul’s affidavit was drafted on 8 April 2002, it is apparent that no attempt to have that affidavit sworn or affirmed was made until “on or about” 20 June 2002, and then only by an enquiry as to his whereabouts. I accept the uncontested submission by the Government party’s representative that Mr Bulabul must have had some notice of the ceremonies in which he seems to have been engaged as well as knowledge of the directions made and find that he should have been in contact with his representative and or solicitor to alert them to his pending unavailability and so to ensure compliance. I am also of the view that the Native Title party’s representative and solicitor, being aware of the time frame set by the directions, should have made early and, if necessary, further and repeated enquiry and contact over the period 11 March - 27 June 2002, to ensure compliance with the directions. It is relevant in that regard that at the status conference on 24 May 2002, no application was made on behalf of the Native Title party for a variation of the compliance date nor at any subsequent time until after the compliance date, nor was there any suggestion of likely unavailability. I also draw attention to the fact that the directions required not only statements of evidence “verified where possible by affidavit” but also a statement of contentions and other documents to be lodged on or before 27 June 2002. No reason was offered as to why the statement of contentions was not duly lodged and served or why the material in the draft affidavit of Mr Bulabul was not lodged and served as a statement of evidence with advice that it was not possible to have it verified by affidavit at that time.
Having regard to the time available for the Native Title party to comply with the directions, to the material before me and to the submissions made, I was satisfied with the Native Title party failed within a reasonable time to proceed with its application by not complying with the directions made on 11 March 2002 and failed to comply with such directions.
Decision
For the reasons given above Expedited Procedure Objection Application DO02/32 is dismissed pursuant to s148(b) of the Native Title Act 1993.
Deputy President
The Hon. E.M. Franklyn QC
12 July 2002
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