Northern Territory/Gabriel Hazelbane & Ors (Warai and Angwinmil)/Michael Page & Ors (Jawoyn)/Michael Daniel Teelow and Gary Anthony Clarke

[2003] NNTTA 8

NATIONAL NATIVE TITLE TRIBUNAL

Northern Territory/Gabriel Hazelbane & Ors (Warai and Angwinmil)/Michael Page & Ors (Jawoyn)/Michael Daniel Teelow and Gary Anthony Clarke, [2003] NNTTA 8

APPLICATION NO: DO 02/97 & DO 02/98

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

- and -

IN THE MATTER of an Inquiry into expedited procedure objection applications

GABRIEL HAZELBANE and VALERIE TAMBLING  on behalf of the Warai and Angwinmil Peoples 

- and –

MICHAEL PAGE on behalf of the Jawoyn People  (native title parties)

- and -

THE NORTHERN TERRITORY OF AUSTRALIA   (government party)

- and -

MICHAEL DANIEL TEELOW and GARY ANTHONY CLARKE  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Mr John Sosso
Place:  Brisbane
Date:  4 February 2003

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)

Cases:Dixon v Northern Territory (2002) 169 FLR 103

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

[1] On 12 June 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) 23506 to Michael Daniel Teelow and Gary Anthony Clarke (‘the grantee party’) and included a statement that it considered this act attracted the expedited procedure.

[2] On 14 October 2002, Gabriel Hazelbane and Valerie Tambling on behalf of the Warai and Angwinmil Peoples and Michael Page on behalf of the Jawoyn People each lodged with the Tribunal a Form 4 - Objection to inclusion in an Expedited Procedure Applications.

Relevant Facts

[3] On 18 October 2002, Deputy President Sumner issued the following directions to the parties in these expedited procedure objection inquiries:

1. A Status conference (if necessary) will be held on 6 January 2003.

2. On or before 3 February 2003 the Territory 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)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 tenement covering or in the near vicinity of the licence area and whether it was the subject to the right to negotiate provisions of the Native Title Act; and

   ivavailable details of prior tenements granted over the same area including the date of the grant and the date of expiry.

3. On or before 10 February 2003 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;

   (c)the details of the registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989 as released from the Aboriginal Affairs Protection Authority; and

   (d)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.

4. On or before 17 February 2003 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.

5. On or before 24 February 2003 each party may reply to the contentions made pursuant to Directions (2), (3) and (4). (NOTE: a reply should not restate matters already dealt with in the contentions.)

6. A listing hearing (if necessary) will be held on 3 March 2003.

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

8. 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));

   ·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 3.16 of the Procedures under the Right to Negotiate Scheme issued by the Tribunal on 8 February 2002 and in particular para 3.16.4); and

   ·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 s 29 of the Native Title Act.

[4] On 6 January 2003 Deputy President Sumner, as Delegate of the President, appointed me as the Member to constitute the Tribunal for the purpose of this expedited procedure objection inquiry.

[5] On 30 January 2003 Mr John Hughes, Solicitor for the Northern Land Council, wrote to Mr Matthew Storey, Solicitor for the Northern Territory, in the following terms :

“I confirm that we are not pressing DO 02/97 and DO 02/98, which both relate to ELA 23506.  I understand you will suggest appropriate changes to proceedings dealing with this to the NNTT.”

[6] On the same day Mr Storey wrote to the Tribunal in the following terms:

“ … In light of Mr Hughes’ correspondence, the Government Party makes application to amend the existing directions so as to provide for the Native Title Party to file contentions by c.o.b. 3 February 2003 and in the event that contentions are not filed by this time the objection to be forthwith dismissed pursuant to s 148(b). The Government Party further seeks amendment to existing direction 2 to provide for the Government party to file its contentions on or before 10 February 2002(sic).”

[7] Mr Mark Rumler of the Northern Land Council advised the Tribunal on 31 January 2003:

“ … we do not object to the Territory’s application(s) for a reversal of directions in these matters and that on any non-compliance with such reversed directions the matters be dismissed pursuant to s 148(b) of the Native Title Act.”

[8] Having regard to the stated position of both the government and native title parties, on 3 February 2003 I amended the Directions issued by Deputy President Sumner. As a result of the changes made, the native title parties each had until close of business 3 February 2003 to provide their statement of contentions and related material. If the material was not supplied by that time, amended Direction 2(d) provided that the expedited procedure objection applications would be dismissed pursuant to s 148(b) of the Native Title Act 1993.

The Tribunal does not lightly make “springing” or “guillotine” directions.  The approach adopted by the Tribunal to such directions is set out in Dixon v Northern Territory (2002) 169 FLR 103. Suffice it to say, having regard to the events outlined above, I was clearly of the view that a “springing” or “guillotine” direction was an appropriate and fair response to the circumstances presented to the Tribunal.

[9] By close of business 3 February 2003 neither of the native title parties had complied with the amended directions.  A “springing” or guillotine” direction is self-executing, and accordingly by close of business 3 February 2003 each of these objections was dismissed.  This decision, then, is a formality and is intended to formally set out the background to the making of the amended directions and provide an explanation as to why these objections were dismissed in this manner.

Decision

The native title parties have failed to comply with the amended Directions of the Tribunal made on 3 February 2003, and accordingly the expedited procedure objection applications in relation to the grant of ELA 23506 to Michael Daniel Teelow and Gary Anthony Clarke, are dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth)

Mr John Sosso
Member