CITATION: Minister for Lands, Planning and Environment V Brown and Others NTLMT 44

CITATION: Minister for Lands, Planning and Environment v Brown and others NTLMT 44

PARTIES:Minister for lands, planning and environment

JESSIE BROWN AND OTHERS ON BEHALF OF THE DAGOMAN PEOPLE

TITLE OF COURT:Lands and Mining Tribunal

JURISDICTION:Lands and Mining Tribunal Act

FILE NO(s):LMT-44-2001-LA(N) (20110633)

DELIVERED ON:24 May 2002

DELIVERED AT:Darwin

HEARING DATE(s):Not applicable

JUDGMENT OF:David Loadman

CATCHWORDS:

COMPULSORY ACQUISITION OF LAND; LAND SUBJECT TO REGISTERED NATIVE TITLE CLAIM; RECOMMENDATION TO MINISTER

Native Title Act 1993 (Cth), s26, s253

Lands Acquisition Act 1978 (NT), s38AA

Lands and Mining Tribunal Act 1998 (NT), s5

REPRESENTATION:

Counsel:

Applicant:Carolyn Walter/Raelene Webb

Objectors:John Hughes

Solicitors:

Applicant:Ward Keller

Objectors:Northern Land Council

Judgment category classification:b

Judgment ID number:NTLMT 44

Number of paragraphs:89

IN THE LANDS AND MINING TRIBUNAL

AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA

No. LMT-44-2001-LA(N) (20110633)

BETWEEN:

minister for lands, planning and environment

Applicant

AND

JESSIE BROWN AND OTHERS ON BEHALF OF THE DAGOMAN PEOPLE

Objectors

DECISION

(Delivered 24 May 2002)

DAVID loadman, CHAIRMAN

HISTORY

By the filing of Form 2 and attachments on 11 July 2001 at the Tribunal, the Minister has referred the issue of the compulsory acquisition of:-

All interests, including native title rights and interests (if any), in all that piece or parcel of land in the Town of Katherine Northern Territory of Australia containing an area of 6600 square metres more or less being Lot 1348 and more particularly delineated on Survey Plan S79/051 lodged with the Surveyor General, Darwin.

(“the land”) to the Lands and Mining Tribunal (“the Tribunal”) , which in terms of section 4(1) of the Lands Acquisition Act 1998 (“LAA”) is the Tribunal to which the matter has to be referred.

According to the Notice of Proposal dated 1 November 2000 the manner in which the Territory proposes to deal with the land if it is acquired is as follows:

(a)Grant a Crown lease term, under the provisions of the Crown Lands Act, to the successful purchaser at auction, (or if passed in at auction, by sale over the counter), for the purpose of proposed industrial/commercial development. Upon completion of development, the Crown lease term may be surrendered in exchange for freehold title.

(b)Completion of government infrastructure such as provision of electricity, water, sewerage, drainage, access and other detailed land services;

(c)Grant easements and other appropriate titles or interests for purposes such as sewerage, water supply, drainage, electricity supply, electronic communications, energy supply and general services required by telecommunications organisations, the Power and Water Authority and the Katherine Town Council.

The Objectors have by Notice of Objection dated 11 November 2000 objected to the proposed acquisition of the land. Attachment A of that document reads

1.All of the land proposed to be acquired is subject to an application (`the Application') for determination of native title filed in the Federal Court on 17 February 2000 (proceeding D6001 of 2000), and entered onto. the Register of Native Title Claims by the National Native Title Tribunal.

2.The native title holders are, traditionally, the owners of the land and waters subject to the Application (`the application area'). The native title rights and interests of the native title holders are set out in the Application. The rights and interests may be summarised as follows:

(a)to possess, occupy, use and enjoy the application area to the exclusion of all others;

(b)to speak for and to make decisions about the use and enjoyment of the application area;

(d) to control the access of others to the application area;

(e) to use, enjoy and manage the resources of the application area;

(f)to control the use and enjoyment of others of the resources of the application area;

(g)to share, exchange and/or trade resources derived on and from the application area;

(h)to maintain and protect places of importance under traditional laws, customs and practices in the application area;

(i)to maintain, protect, prevent the misuse of and transmit to others their cultural knowledge, customs and practices associated with the application area;

(j)to determine and regulate membership of, and recruitment to, a landholding group.

3.The native title holders object to the acquisition and proposed development of the land included in the notice of proposal on the following grounds:

(a) the acquisition will extinguish all native title rights and interests in the land proposed to be acquired;

(b) native title holders will no longer be able to possess, occupy, use and enjoy the land in the exercise of their native title rights and interests;

(i) the freedom of access by any of the native title holders to the land concerned or adjacent land and their freedom to carry out activities of cultural significance on or adjacent to the land in accordance with their traditions;
(ii) sacred sites on or adjacent to the land and Dreamings which pass through or are adjacent to the land; and
(iii) prevent native title holders from:

(A) protecting and maintaining sites on or adjacent to the land;
(B)caring for the land in accordance with their spiritual obligations;
(C)protecting the land from harm by observing and engaging in their customs, laws, practices and usages in relation to the land;
(D) visiting and camping special or exclusive places; and
(E)maintaining and passing on their spiritual knowledge of the land and retaining their knowledge of the connection of individuals or groups to particular parts of the land.

(d) the proposed development will permanently alter the topography of the land and the spiritual, environmental and ecological character of the land and adjacent land.

(e) the acquisition and proposed development will or is likely to affect:

(i) the way of life, culture and traditions of the native title holders;
(ii)the development of the social, cultural and economic structures of the native title holders.

(f)fundamentally, the acquisition and proposed development will deny. native title holders, in the exercise of their native title rights and interests, the right to:

(i) manage, use or control the land;
(ii)use or develop the land or its resources for their own social, cultural or economic purposes; and
(iii) control the access of, or use by, others of the land.

On 31 July 2001 the Objectors filed a Form 3 Response and the Grounds for Opposing Application from that document are set out below:-

The grounds on which the respondent opposes the application to start a proceeding are as follows:

1.To date, there has been no agreement between the parties on any matter relevant to the Tribunal's recommendation.

2.The Objector does not dispute the Applicant's position that the proposed compulsory acquisition is a future act which falls within the parameters of s24MB(1) of the Native Title Act 1993 (Cth) but does not admit that s24MD(1) of the Native Title Act 1993 applies to the proposed compulsory acquisition.

1.The Objector makes no admission that the Applicant has complied with sections 36,37 and 38 of the Lands Acquisition Act (NT).

2.The Objector does not dispute the Applicant's position that subdivision P of Division 3, Part 2 of the NTA does not apply.

3.The grounds for the Objector's objection to the proposed compulsory acquisition are set out in the objection lodged with the Minister in relation to this matter.

On 8 August 2001 by consent of the parties the Tribunal directed that all material be filed on or before 5 November 2001. This date has been extended from time to time by consent between the Applicant and the Objectors.
On 28 March 2002 at a directions hearing convened by the Tribunal, the matter was set down for hearing for 5 days, commencing on 13May 2002.
On 9 May 2002, Minutes of Consent were filed by the parties and the following order was made:

1.The hearings dates 13 to 17 May 2002, inclusive, be vacated.

2.The parties have leave to file and serve any further affidavit material by Wednesday 15 May 2002.

3.The parties have leave to file and serve writtensubmissions by Friday 17 May 2002.

4. The parties confirm:
. they do not wish to crossexamine any deponent;
. they do not wish to make oral submissions;
. there has been no agreement in relation to any issuetobe determined by the Tribunal.

5.The parties request that the Tribunal then proceed tomake its decision in relation to these matters on the written material filed to date and pursuant to thisorder.

PRELIMINARY COMMENTS OF THE TRIBUNAL

Section 22(1) of the Lands and Mining Tribunal Act (“LMT”) provides relevantly that the Tribunal may make a recommendation under section 5(1)(a) LMT -

(a)upholding an objection to the act so far as it affects registered native title rights and interests; or

(b)that contains conditions about the doing of the act that relate to registered native title rights and interests and that are to be complied with by any parties to the proceeding.

Section 22A LMT empowers the Tribunal to dismiss an objection by virtue of subsection (2) on specified grounds. It is common ground that the objection in this matter ought not be dismissed.
Section 38AA LAA specifies the criteria which must be considered by the Tribunal in making its recommendation. Subsections (1) and (2) of that section are in the following terms:

(1)In making a recommendation in relation to the acquisition of land, the Tribunal must take into account all matters that the Tribunal considers relevant.
(2)Where registered native title rights and interests will be or may be affected by the acquisition, the matters that the Tribunal must take into account under subsection (1) include -

(a)all objections in relation to the effect that the acquisition will have or is likely to have on registered native title rights and interests that were referred to the Tribunal and all submissions made to the Tribunal about those objections, which may include objections and submissions about those objections as to the effect of the acquisition on any of the following:

(i)the enjoyment by the native title claim group of those registered native title rights and interests;

(ii)the way of life, culture and traditions of the native title claim group;

(iii)the development of the social, cultural and economic structures of the native title claim group;

(iv)the freedom of access by the native title claim group to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions;

(v)any area or site, on the land or waters concerned, of particular significance to the native title claim group in accordance with their traditions;

(b)ways of minimising the impact of the acquisition on registered native title rights and interests, including in relation to access to the land the subject of the acquisition;

(c)the economic or other significance of the acquisition to the Territory and to the region in which the land the subject of the acquisition is located, including the Aboriginal peoples who live in that region; and

(d)the public interest in the acquisition.

The Applicant proposes to compulsorily acquire all of the land.
Pursuant to section 38AA(3) LAA, the Tribunal “must inquire” of the parties whether there are any issues relevant to its recommendation in relation to which the parties have reached agreement and, if any agreement has been reached and the parties consent to the Tribunal doing so, the Tribunal “must (if relevant) take the agreement into account”. Such an inquiry was made of the parties in writing. The response from the parties is recorded in paragraph7 of this decision.

EVIDENCE AND/OR SUBMISSIONS

In the Applicant’s form 2, the Applicant asserts that the land falls within the provisions of section 251C(3)(c) NTA.
Attachment A to the said Form 2 is said to be a copy of a proclamation of His Honour Eric Eugene Johnson the Administrator dated 26 February 1988 published in Northern Territory Gazette S11 dated 4 March 1988 and relating to the alteration and extension of the boundaries of the municipality of Katherine pursuant to Section 7(1)(a) of the Local Government Act of the Northern Territory as it then was. It is asserted that Section 267 of Part 14 of the Local Government Act prescribes that a proclamation such as Attachment A shall continue in force as if made under the relevant provisions of the Local Government Act Northern Territory. It is asserted further that the proclamation at Attachment A made pursuant to
Section 7(1)(a) of the Local Government Act 1979 continues in force as though it was made pursuant to Section 29 of the current Local Government Act of the Northern Territory.
Attachment B is said to be a map prepared by the Department of Lands Planning & Environment identifying both the area described in the notice and the location of the land. It is asserted that as the land falls within the area described in Section 251C(3)(c) NTA sub division P of NTA does not apply.
The Applicant asserts in the Form 2 filed in the proceeding that there has been compliance with the provisions of sections 36, 37 and 38 LAA. The Objectors take issue with this assertion in the Form 3 filed in response to the Form 2 above.
The Applicant makes assertions in its Form 2, in relation to the non application of Subdivision P, that have already been recounted and are set out in previously in this decision.
As also already recounted previously in this decision, the Objectors in their Form 3 concede that sub-division P NTA does not apply.
On 2 August 2001 Noreen Alma Blackley swore an Affidavit on behalf of the Applicant (Blackley’s August Affidavit). She sets out the fact of her employment and responsibility and then recites the formal steps taken following upon the approval by the Minister of the process to acquire the land. These matters are contained in paragraphs 1 – 12 of Blackley’s August Affidavit.
In paragraph 13 of Blackley’s August Affidavit she states that on
11 November 2000 a Notice of Objection to the proposed acquisition by the Objectors was forwarded to the Department by the NLC and annexes marked NAB 11 a true copy of that Notice.
In paragraph 14 of Blackley’s Affidavit she asserts the dispatch of an invitation to consult on 8 February 2001 being addressed to the Objectors.
In paragraph 15 of Blackley’s August Affidavit she sets out that on
24 April 2001 a second invitation to consult was forwarded to the Objectors.
Apart from formal matters deposed to in paragraphs 16 and 17 the next relevant allegations are contained in paragraph 18 of Blackley’s August Affidavit setting out contact with the Aboriginal Areas Protection Authority whose advice marked NAB 17 is to the effect that there are “no registered or recorded sacred sites within the area”.
On 20 September 2001 Noreen Alma Blackley swore a further Affidavit on behalf of the Applicant (“Blackley’s September Affidavit”).
In Blackley’s September Affidavit relevantly she sets out in paragraph 3 that the land is not subject to flooding. She describes its location as 2 kilometres east of Katherine’s main commercial areas. Further that “it is seen as desirable land for new businesses as well as existing businesses wishing to move out of the flood zone”.
In paragraph 4 of Blackley’s September Affidavit she refers to a map marked NAB 1 in respect of the identity and location of the land.
She asserts in paragraph 5 of her September Affidavit that the establishment of new business premises is significant in the context of the Katherine local economy and is “likely to result in a boost to economic activity during the course of development in addition to the longer term benefits of potential employment opportunities”.
In paragraph 6 of Blackley’s September Affidavit she states that the proposed development is a permitted use with consent from the Katherine division of the Development Consent Authority. She sets out its zoning as 12 (General Industry) in accordance with the Katherine Town Plan.
In paragraph 7 of Blackley’s September Affidavit she refers to a tenure history which is marked NAB 2 to the Affidavit. She states that the land is adjacent to a well established grain depot and stock feed enterprise and is surrounded by the Katherine East Industrial sub division.
There is the usual futile position of the Minister stated in paragraph 8 of the September Affidavit upon which the Tribunal makes no comment.
In relation to the criteria specified in Section 38AA LAA 2(a)(ii) she then asserts sequentially:-

10.1.1The boundaries of the land as previously set out concluding that public access is possible “but is not authorised nor encouraged”;

10.1.2She refers to an aerial photograph marked NAB 3;

10.1.3It is “unlikely that the area of the Land is the subject of significant use by Native Title holders”. That of course is not a positive assertion of fact. The Land is either used or not used. Nevertheless it is further asserted that it is “unlikely there will be any significant effect on Native Title holders as a result of the extinguishment of any native title rights and interests in respect of the Land;

10.1.4It is asserted the Land contains no natural features such as creeks, hunting ground (whatever that is supposed to be) or the like which might be the subject of traditional rights and uses;

10.1.5It is alleged that the Land is not known to be used by any Native Title Claim Group or holders for the purposes of carrying out any traditional rites, ceremonies or uses.

The criterion expressed in the succeeding sub section of the LAA namely (iii) seems then to be addressed as Land being described as relatively arid;

10.2.1Asserts there is no real prospect for the development of any economic structure for the benefit of Native Title Holders;

10.2.2That it would not appear to offer any “real basis for social or cultural maintenance or development”.

Presumably addressing the further sub section (iv): it is asserted that freedom of access and continuation of Native Title rights would be incompatible with development of the Land.
Addressing the further sub section (v) that as a consequence of the lack of registered sacred sites being recorded in relation to the Land there is no area or site of particular significance to the Objectors.
A further Affidavit was sworn by Simone White on 20 September 2001 (“White’s Affidavit”).
In White’s Affidavit she alleges relevantly that she conducted a site inspection of the Land and took photographs on the occasion of such inspection. She annexes a location map and photographs which are referred to in paragraph 4 and 5 of her Affidavit and are annexed marked SW1 and SW2 to that Affidavit.
In paragraph 6 of White’s Affidavit she recites her observations sequentially as follows:-

6.1The Land is located in the Katherine east industrial area which encompasses buildings and sheds used for industrial purposes and the usages are then set out;