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Ward v Northern Territory

Ward v Northern Territory

Case [2002] NNTTA 104 12 June 2002

Native Title

Adverse Possession

Legitimate Expectation

Proportionality

Indigenous Peoples & Native Title Law

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Reported at (2002) 169 FLR 303

NATIONAL NATIVE TITLE TRIBUNAL

Ben Ward and Others/Swiftel Ltd/Northern Territory, [2002] NNTTA 104 (12 June 2002)

APPLICATION NO: DO 01/83

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

- and -

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

Ben Ward and Others (Native Title Party)

- and -

Swiftel Ltd (Grantee Party)

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Northern Territory of Australia (Government party)

INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:   John Sosso
Place:        Brisbane
Date:         12 June 2002

Hearing dates: 30 May 2002

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, Mr Paul Kennard

Grantee Party: Mr Rick Denny

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – Multiple Forms 4 – whether the applicants can have separate legal representation - recorded or registered sites – previous exploration/mining activity – legal principles – whether act directly interferes with community or social activities – activities must manifest claimed native title rights and interests – whether act interferes with areas or sites of particular significance – site rich land and waters – act does not attract expedited procedure.

Legislation: Acts Interpretation Act 1901 (Cth) s 36

Native Title Act 1993 (Cth) ss 29, 32, 44H, 66B, 148, 151, 190A, 237

Cases:Ben Ward & Ors on behalf of the Miriuwung & Gajerrong People/Ausquest Limited/Northern Territory DO01/63, Member Sosso, 8 April 2002
Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601
Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, Member Sosso, 3 May 2002
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361
Moses Silver & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/13, Member Sosso, 1 February 2002
Northern Territory/Ben Ward & Ors/Ashton Exploration Australia Pty Ltd DO01/3, Member Sosso, 24 October 2001
Page/Archer, Kastrissios, Langley/Northern Territory DO01/20, Member Sosso, 1 February 2001
Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Wongatha People WF99/5, Hon C J Sumner, 24 February 2000
Re Miriuwong and Gajerrong Peoples (1996) 128 FLR 90
Re Nyungah (1996) 132 FLR 54
Rory and Dixon/Northern Territory/Astro Mining NL DO01/110-111, Deputy President Franklyn, 10 May 2002
Smith v Western Australia (2001) 108 FCR 442
Tilmouth v Northern Territory (2001) 109 FCR 240
Ward v Northern Territory [2002] FCA 171
Ward v Western Australia (1998) 159 ALR 483
Wilfred Hicks/Western Australia/Legend Mining NL WO99/71, Deputy President Franklyn, 25 September 2000
Wilma Freddie/Western Australia/Stephen Povey WO99/882 Member Stuckey-Clarke, 19 December 2001
Western Australia v Ward (1996) 70 FCR 265
Western Australia v Ward (2000) 99 FCR 316
Young v Western Australia (2001) 164 FLR 1

REASONS FOR DETERMINATION

Background

[1] On 30 May 2001 the Northern Territory (“the government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that…

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 Ward v Northern Territory

Details

AGLC: Ward v Northern Territory [2002] NNTTA 104
Case: [2002] NNTTA 104
Decision Date: 12 June 2002

CaseChat Overview and Summary

Ward and others initiated legal proceedings against the Northern Territory, asserting that a proposed grant of an exploration licence constituted a future act that would extinguish their native title rights. The matter was heard by the Federal Court, where the applicants sought an expedited procedure for their objection application, submitting multiple Forms 4. They also requested separate legal representation for each applicant. The case required the court to address whether the applicants could have distinct legal counsel and if the proposed exploration activities would directly interfere with their community or social activities, thereby manifesting their claimed native title rights and interests. Additionally, the court had to determine if the act would interfere with areas or sites of particular significance, such as rich land and waters.

The court examined the legal principles governing future acts that may extinguish native title. It considered whether the proposed exploration licence grant would directly interfere with the applicants' community or social activities and whether these activities manifested their claimed native title rights and interests. The court also assessed whether the act would interfere with areas or sites of particular significance, such as rich land and waters. Given that the site was not recorded or registered and previous exploration or mining activities had occurred, the court concluded that the act did not attract the expedited procedure. The court found that the proposed exploration activities would not directly interfere with the applicants' community or social activities or the areas of particular significance, thus the act did not extinguish their native title rights.

The court ruled that the applicants could not have separate legal representation, as it would undermine the integrity of the legal process and potentially create conflicts of interest. It also determined that the proposed exploration activities did not directly interfere with the applicants' community or social activities or the areas of particular significance, thus the act did not extinguish their native title rights. The court dismissed the applicants' objection application and denied their request for an expedited procedure. As a result, the proposed exploration licence grant proceeded as planned, and the applicants' native title rights were not extinguished.

Orders