CITATION: Minister for Lands, Planning and Environment v Quall and Risk (2000) NTLMT004

PARTIES:Minister for lands, planning and environment

v

Tibby kevin lance quall

and

william maxwell risk on behalf of the larrakia people

TITLE OF COURT:Lands and Mining Tribunal

JURISDICTION:Lands and Mining Tribunal Act

FILE NO(s):LMT-08-2000-LA(N) (20013679)

DELIVERED ON:15 December 2000

DELIVERED AT:Darwin

HEARING DATE(s):Not applicable

JUDGMENT OF:David Loadman

CATCHWORDS:

COMPULSORY LAND ACQUISITION – OBJECTION BY REGISTERED NATIVE TITLE CLAIMANT – RECOMMENDATION BY TRIBUNAL

Native Title Act 1993 (Cth)

Lands Acquisition Act (NT), s 38AA

Lands and Mining Tribunal Act (NT), s 5

REPRESENTATION:

Counsel:

Applicant:Sinclair Whitbourne

1st Objector:Self

2nd Objector:Penny Creswell

Solicitors:

Applicant:Ward Keller

1st Objector:In person

2nd Objector:Northern Land Council

Judgment category classification:b

Judgment ID number:ntlmt (2000) 004

Number of paragraphs:100

IN THE LANDS AND MINING TRIBUNAL

AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA

No. LMT-08-2000-LA(N) (20013679)

BETWEEN:

minister for lands, planning and environment

Applicant

AND:

Tibby Kevin quall

1st Objector

AND:

WILLIAM MAXWELL RISK ON BEHALF OF THE LARRAKIA PEOPLE

2nd Objector

DECISION

(Delivered 15 December 2000)

David loadman, CHAIRMAN

  1. By letter dated 27 July 2000, the Minister has referred the issue of the compulsory acquisition of

“All interests, including native title rights and interests (if any), in all those pieces or parcels of land identified as small parts of Myilly Point as described more fully below...

Firstly:

All that parcel of land near Myilly Point in the Town of Darwin Northern Territory of Australia containing an area of 907 square meters more or less and bounded by lines described as follows:

Commencing at the northeastern corner of lot 5496 Town of Darwin; thence by lines bearing 69 degrees 5 minutes 9.99 meters, 108 degrees 18 minutes 10 seconds 28.6 meters, 59 degrees 19 minutes 30 seconds 14.24 meters, 135 degrees 12 minutes 40 seconds 42.05 meters, 166 degrees 19 minutes 50 seconds 36.735 meters, 163 degrees 56 minutes 20 seconds 31.605 meters, 339 degrees 13 minutes 30 seconds 31.615 meters, 341 degrees 46 minutes 50 seconds 27.305 meters, 326 degrees 5 minutes 40 seconds 4.97 meters, 303 degrees 25 minutes 50 seconds 35.785 meters, 293 degrees 11 minutes 50 seconds 39.885 meters, 261 degrees 39 minutes 20 seconds 6.805 meters to the point of commencement.

And Secondly:

All that parcel of land near Myilly Point on the Town of Darwin Northern Territory of Australia containing an area of 187 square meters more or less and bounded by lines described as follows:

Commencing at the most eastern corner of lot 2420 Town of Darwin; thence by lines bearing 49 degrees 32 minutes 20 seconds 11.81 meters, 129 degrees 31 minutes 30 seconds 20.425 meters, 229 degrees 32 minutes 20 seconds 6.87 meters anal 296 degrees 39 minutes 21.835 meters to the point of commencement”

(“the land”) to the Lands and Mining 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. Each of these parcels of land is near Myilly Point in the Town of Darwin, Northern Territory of Australia.

  1. As set out in the Notice of Proposal dated 19 October 1999, the manner in which the Territory proposes to deal with the land if it is acquired is as follows:

(a) Grant of two Crown leases term under the provisions of the Crown Lands Act to the Moran .Health Care Group or its nominee for the purposes of a proposed aged care facility and residential units. Subject to the completion of the proposed development, the Crown leases term may be surrendered in exchange for a freehold titles;

(b) The area adjacent to Lot 6424 Town of Darwin will be incorporated as part of the development but the Rotary Lookout is to be enhanced and maintained by the landowner. Public access to the Rotary Lookout will be protected by a right of way in favour of the public, registered against the title;

(c) Completion of Government and/or Council infrastructure requirements, such as provision of electricity, water,, sewerage, access and telecommunications, and;

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

  1. The Notice of Objection of the first objector dated 8 December 1999 had as paragraph 5 the following:

“Extinguishment of Native Title Rights and Interests
Destruction of Ecology and Environment and access possibly of Scenic surroundings untouched for centuries”

  1. The Notice of Objection of the second objector dated 28 December 1999 had as Attachment A the following:

“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 19 October 1999, and is pending registration 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 arc 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;
(c) to reside upon and otherwise have access to and within 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 he 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;
(c)the proposed development will or is likely to interfere with or otherwise affect:

(i) the freedom of access by any of the native title holders to the and 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 is land;
(D) visiting and cramping 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 arid 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.”

  1. By virtue of section 5A LAA this intended acquisition invokes the application of LAA because the act is -

“in relation to an acquisition of an interest in land that comprises native title rights and interests-
(a)that is an act to which the consequences in section 24MD(6A) or (6B) of the Native Title Act [“NTA”] apply ... ”.

  1. Section 24MD(6A) NTA is part of Subdivision M of NTA.
  2. Section 24MB NTA (freehold test) applies Subdivision M, NTA, to a “future act”, which is not an act comprising the making, amendment or repeal of legislation and (relevantly) the act could be done if the native title holders held ordinary title to the land and there is Commonwealth, State or Territory legislation which in essence preserves the existence of sacred sites.
  3. Section 233 NTA defines “future act” and provides relevantly that the section applies, in summary, if it is an act that takes place after 1 January 1994, it is not a past act and (apart from NTA) it validly affects native title to the land.
  4. “Past act” is defined in section 228 of NTA and for the purposes of this application it is common ground the act in question is not a past act.
  5. In Subdivision P, NTA, the “Right to Negotiate” provisions are set out in section 25 NTA.
  6. Section 26 NTA specifies when the Right to Negotiate provisions apply.
  7. Further the terms of section 26(2)(f) NTA the Right to Negotiate provisions do not apply to the extent that the act is: -

“(f)an act that is the compulsory acquisition of native title rights and interest and that relates solely to land or waters wholly within a town or city (see section 251C).”

  1. Section 251C of NTA, “Towns and Cities” in relation to the Northern Territory states

“Areas in the Northern Territory
(3)Subject to subsection (4), a particular area in the Northern Territory is a town or city if, as at 23 December 1996, it was:
(a) gazetted as a town (other than the town of Darwin, Hatches Creek, Brocks Creek, Burrundie or Urapunga) under subsection 95(1) of the Crown Lands Act of the Northern Territory: or
(b) the area in the Schedule to the Darwin Lands Acquisition Act 1945 of the Commonwealth; or
(c) within a municipality constituted under section 29 of the Local Government Act of the Northern Territory.”

  1. In the application lodged by the applicant it is asserted that the land falls within the provisions of section 251C (3)(b) NTA, in that as at 23 December 1996, it was within the area described in the schedule to the Darwin Lands Acquisition Act 1945 (Cwth) (“DLAA”).
  2. Attachment A to the applicant’s Form 2 filed with the Tribunal is a copy of DLAA. Attachment B is a map said to be prepared by the Department of Lands, Planning and Environment, identifying the both the area described in the schedule DLAA and the location of the land.
  3. The second objector, in his Form 3, concedes that section 24 (M)(B)(1) and section 24 (M)(D)(1) NTA are the provisions of NTA that confer on this Tribunal jurisdiction to proceed to make a recommendation.
  4. The first objector had not filed the prescribed Form 3 within the prescribed time but, after a written communication of 3 October 2000 pointing the omission out to him in which also certain matters to be observed were pointed out to him, he filed a Form 3 on 13November 2000. The Tribunal has no idea as to whether or not service of this documented was effected on the applicant or the second objector. The Form 3 did not deal with the matters specified in the Tribunal’s letter and the “grounds of opposition” are in the following terms:

“Native Title rights and Interests.
Access.
Community Area.
Objection to Development,
Monstrosities that cover the skyline and Natural areas”

(‘the first objector’s objection”.

  1. In practical terms if any comprehensible meaning or valid objection is to be derived from the first objector’s objection particularly in dealing with the allegations made by the applicant in his Form 2, it is beyond the power of this Tribunal to discern what it is. Further the first objector has filed no material pursuant to the orders of this Tribunal made from time to time relating to the filing of material.
  2. In the Form3 filed on behalf of the second objector, it is “not disputed” that Sub-division P of Division 3, Part 2 of NTA does not apply.
  3. Section 5 Lands and Mining Tribunal Act 1999 (“LMT”) provides for the Lands and Mining Tribunal (“the Tribunal”) to hear and make recommendations about objections to the acquisition of land under LAA which include objections by “registered native title claimants” amongst others “so far as it affects the registered native title rights and interests of the claimants…”.
  4. “Registered native title claimant” in terms of LMT “has the meaning given in section 253 of the Native Title Act...” (section 3(1) LMT)
  5. Section 253 NTA provides that “registered native title claimant”, (in terms of section 3(1) LMT) “in relation to land or waters, means a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.”
  6. “Registered native title rights and interests” as defined pursuant to section 3(1) LMT means -

“(a) in relation to a registered native title claimant – the native title rights and interests of the claimant described in the relevant entry on the Register of Native Title Claims; and

(b) in relation to a registered Native title body corporate – the native title rights and interests of the body corporate described in the relevant entry on the National Native Title Register established and maintained under part 8 of the Native Title Act;”

  1. The power in section 5(1) LMT is expressed to be subject to subsection(2), which prohibits the Tribunal becoming seized of the matter, relevantly in this case, unless the parties have complied with sections 36, 37 and 38 LAA.
  2. Those provisions, in broad compass, deal with compulsory consultation and mediation issues.
  3. The applicant in its Form 2 asserts compliance with sections 36, 37 and 38 LAA. The second objector in his Form 3 makes no admission that there has been compliance.
  4. In support of the application the applicant has filed an affidavit sworn by Maureen Alma Blackley on 5 October 2000 (“Blackley’s affidavit”). In paragraph 15 of Blackley’s affidavit it is asserted that Ms Wendy Cole employed in the applicant’s department wrote to the first objector and to Mr Ron Levy NLC on behalf of the second objector inviting them to consult in accordance with section 36 LAA. Annexed to Blackley’s affidavit marked NAB 13 and NAB 14 are said to be true copies of the relevant letters.
  5. After an exchange of correspondence, referred to in Blackley’s affidavit”:

(a)According to his allegations contained in paragraph 18 of Blackley’s affidavit a “consultation meeting” was held with the first objector. No agreement was reached; and

(b)According to the allegations contained in paragraph 19 of Blackley’s affidavit on 15 May 2000 a “consultation meeting” was held with a representative from the NLC representing the second objector. No agreement between them was reached.

  1. Further it is alleged that following upon a request on 8 June 2000 on behalf of the second objector the applicant’s department advised the NLC on behalf of the second objector that the consultation period would expire on 15 June 2000 and that the Minister would be referring the matter to this Tribunal thereafter. These facts appear from paragraphs 20 and 21 of Blackley’s affidavit.
  2. In paragraph 23 of Blackley’s affidavit it is alleged that on 27 July 2000 the applicant wrote to each of the objectors indicating an intention to apply to this Tribunal and the letters are identified in that paragraph and exhibited to the affidavit..
  3. The Tribunal asserts that it cannot deal with issues of compensation until or unless the Federal Court has ruled that a Native title claim should be upheld.
  4. The parameters of the Tribunal’s powers in regard to objections are set out at Division 2, Part 3, LMT at sections 22 and 22A.
  5. In terms of section 22, the Tribunal is empowered inter alia to make a recommendation under section 5(1)(a) LMT (which empowers the Tribunal to hear and make recommendations about objections to the acquisition of land including objections by registered native title claimants and registered native title bodies corporate to the acquisition so far as it affects the registered native title rights and interests of the claimants and bodies).
  6. Section 22(1) provides relevantly that the Tribunal may make a recommendation under section 5(1)(a) -

“(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.”

  1. The relevant registered native title rights and interests asserted by the objectors in this matter are allegedly recorded in the Register of Native Title Claims. Annexures NAB 1 and NAB 2 to Blackley’s affidavit comprise copies of a search of the Registrar of Native Title Claims which contain the details of each native title claim registered by each of the objectors.
  2. 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.
  3. 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;