William Harney (on behalf of the Wardaman Group)/Northern Territory/David J. Langley

[2002] NNTTA 226

NATIONAL NATIVE TITLE TRIBUNAL

William Harney (on behalf of the Wardaman Group)/Northern Territory/David J. Langley, [2002] NNTTA 226 (4 November 2002)

APPLICATION NO: DO02/65

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

-and-

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

WILLIAM HARNEY (on behalf of the Wardaman Group)      (native title party)

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NORTHERN TERRITORY OF AUSTRALIA   (government party)

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DAVID J. LANGLEY   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   John Sosso
Place:  Brisbane
Date:  4 November 2002

Catchwords:             Native title – future act – proposed grant of exploration licence - expedited procedure objection 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 20 March 2002, the government party gave notice under section 29 of the Native Title Act1993 (Cth) of its intention to grant ELA 23171 to David J. Langley (‘the grantee party’) and included in the Notice a statement that it considered that the grant attracted the expedited procedure.

[2] On 22 July 2002, William Harney on behalf of the Wardaman Group (‘the native title party’) lodged a Form 4 (Objection to inclusion in an Expedited Procedure Application) with the Tribunal.

Relevant Facts

[3] On 30 July 2002 Deputy President Sumner issued the following Directions to the parties:

(1)On or before 7 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 1:1000,000 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:

i     copies of the application for the licence/s;

ii    copies 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.

(2)On or before 14 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 that 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.

(3)On or before 21 November 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 provided to the other parties) indicating the nature of the documents and the manner in which it is proposed that 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.         

(4)On or before 28 November 2002 each party may reply to the contentions made pursuant to Directions (1), (2) and (3).

(5)A listing hearing (if necessary) will be held on 28 November 2002.

(6)Liberty is given to apply to vary these directions or for a relisting of this hearing.

(7)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] On 10 October 2002, a Status Conference was held. The Grantee Mr David Langley was not able to be contacted however, at the Preliminary Conference which took place on 15 August 2002, he advised the Tribunal that he wished the Directions to stand as made, and that he considered there was no likely prospect of an agreement with the Native Title Party.

[5] On 15 October 2002, Deputy President Sumner appointed me as the Member to constitute the Tribunal for the purposes of this inquiry.

[6] On 31 October 2002, the government party advised the Tribunal that:

“Proposed EL 23171 is entirely contained within Crown Lease Perpetual 868 (Delamere). CLP 868 was issued on 23 January 1989 to the Commonwealth of Australia. It is stated to be for the purpose of an air to surface missile range. A copy of the title search certificate and a map of the vicinity of CLP 868 showing the location of the proposed EL 32171 is attached.

On 8 August 2002 the decision of the High Court in Western Australia v Ward (2002) 191 ALR (“Ward”) was handed down. The decision makes it clear that a Northern Territory Crown Lease Perpetual if valid or validated constitutes a Previous Exclusive Possession Act pursuant to s.23B that will extinguish all native title (see Ward at [439].) In the circumstances of the current matter the exception to this general principle contained within s.23B(9C) can have no application(see Ward [259]-[261].)
Accordingly, in the submission of the Territory all native title rights in the area contained within CLP 838 (and therefore within the area contained within EL23171) have been extinguished. In these circumstances the Territory makes application to have the Objection DO02/65 dismissed pursuant to s.147 (a).

The Territory also makes application to have this matter raised and determined at a Listing Hearing prior to the date for compliance with Direction 1 (7 November 2002).”

[7] On 1 November 2002, Mr Mark Rumler, Solicitor representing the native title party advised the Tribunal:

“We advise we have been unable to date to obtain sufficient instruction for the purposes of taking affidavit evidence in this matter and that there are no reasonable prospects in the future for doing so within a reasonable time.”

[8] On 4 November 2002, I convened a Listing Hearing and each of the parties addressed the Tribunal.

[9] Mr Storey sought to clarify two matters in his correspondence of 31 October 2002. The first related to an incorrect reference to CLP 838 instead of CLP 868, while the second was the suggestion that the expedited procedure objection application be dismissed pursuant to section 147(a). Mr Storey explained that the reference should have been to section 148(a). In addition Mr Storey expanded on his contention that following the decision of Ward v Western Australia (2002) 191 ALR 1 the fact that the underlying tenure of a proposed tenement is Crown Lease Perpetual potentially raises the issue of whether the Tribunal has jurisdiction.

[10] Mr Rumler, while not conceding this issue, re-iterated that there were no prospects of the native title party complying with the Directions made and did not contest the government party’s ultimate submission that it would be appropriate to dismiss the expedited procedure objection application pursuant to section 148. However, Mr Rumler’s preferred basis for dismissal was for want of compliance (section 148(b)), rather than for want of jurisdiction (section 148(a)).

[11] Mr Langley (the grantee party) did not make any submissions on these matters.

[12] Having heard from the parties, I directed that Directions be amended to provide that the native title party file and serve its Contentions and related documents by 4 November 2002, and if it failed to do so by close of business that day, the expedited procedure objection application would be dismissed pursuant to section 148(b). No party objected to this course of action.

[13] 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 there are no prospects of it complying with Directions, and in such circumstances it is appropriate to make a “springing” or “guillotine” direction. As the native title party has failed to comply with the Direction (1), namely providing to the Tribunal and the other parties its statement of contentions and related documents, Direction (1)(d) has been activated and the expedited procedure objection application dismissed. This Decision, then, is formal only as the “springing” direction made on 4 November 2002 requires no further action. Nonetheless as the dismissal of an expedited procedure objection inquiry pursuant to section 148(b) is a serious matter it is important to set out the background to the dismissal.

Decision

[14] The native title party has failed to comply with Directions made on 4 November 2002, therefore, the expedited procedure objection application in relation to the grant of Exploration Licence 23171 to David J Langley, is dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Member