CITATION: Minister for Lands, Planning and Environment v Brown and others NTLMT 47

PARTIES:Minister for lands, planning and environment

v

JESSIE BROWN AND OTHERS ON BEHALF OF DAGOMAN PEOPLE

TITLE OF COURT:Lands and Mining Tribunal

JURISDICTION:Lands and Mining Tribunal Act

FILE NO(s):LMT-47-2001-LA(N) (20115626)

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 47

Number of paragraphs:94

IN THE LANDS AND MINING TRIBUNAL

AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA

No. LMT-47-2001-LA(N) (20115626)

BETWEEN:

minister for lands, planning and environment

Applicant

AND

JESSIE BROWN, IVY BRUMBY, RHODA BRUMBY, MARIA DOWLING, GARY MANBALOO, AMY MARRAPUNYAH, JULIE WILLIAMS ON BEHALF OF THE DAGOMAN PEOPLE

Objectors

DECISION

(Delivered 24 May 2002)

DAVID loadman, CHAIRPERSON

HISTORY

  1. By the filing of Form 2 and attachments on 10 October 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 parcel of land at Katherine in the Northern Territory of Australia containing an area of 2.14 hectares more or less being Lot 3018 Town of Katherine and more particularly delineated on Survey Plan S2000/190 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.

  1. In the applicant’s form 2, the applicant states:

At attachment "A" is a copy of a Proclamation of His Honour Eric Eugene Johnston, then Administrator, dated 26 February 1988 and published in the Northern Territory Government Gazette S11, dated 4 March 1988, 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). Section 267 of Part 14 of the Local Government Act of the Northern Territory sets out inter alia that Proclamations such as that set out at attachment "A" shall continue in force as if made under the relevant corresponding provisions of the Local Government Act of the Northern Territory. In this case the Proclamation at attachment "A", made pursuant to Section 7(1)(a) of the Local Government Act 1979 continues in force as though it were made pursuant to Section 29 of the current Local Government Act of the Northern Territory

At attachment "B" is a map, prepared by the Department of Lands, Planning and Environment, identifying both the area described in the Notice and the location of the land the subject of the proposed compulsory acquisition ("the land"). As the land falls within the area described in section 251 C(3)(c) of the NTA, Subdivision P of the NTA does not apply. The Land, the subject of the proposed acquisition is proposed Lot 3018 Town of Katherine.”

  1. According to the Notice of Proposal dated 1 December 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 Lake Marong Pty Ltd for the purpose of establishing a food and beverage distribution facility. Upon completion of development, the Crown lease term may be surrendered in exchange for freehold title;

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

(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.

  1. The objectors have by Notice of Objection dated 16 December 2000 objected to the proposed acquisition of the land. Attachment A of that document reads

1.All of the land is subject to an application (the "application") for determination of native title filed in the Federal Court on 25 May 1999 (application D6002/99) and entered on the Register of Native Title Claims on 29 November 1999.

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 and 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 proposed acquisition and development of the land on the following grounds:

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

(b)the proposed acquisition will permanently prevent the native title holders from possessing, occupying, using and enjoying 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 land and/or adjacent land;
(ii)the freedom of the native title holders to carry out activities of cultural significance on the land and/or adjacent land in accordance with their traditions;
(iii)sacred sites and/or other places of importance on the land and/or adjacent land; and
(iv)prevent native title holders from:

(A)protecting and maintaining sites and/or other places of importance on or adjacent to the land;
(B)caring for the land in accordance with their traditional 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.

  1. The Objectors’ form 3, filed on 7 November 2001 at the Tribunal, states:-

GROUNDS FOR OPPOSING APPLICATION

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

1.There has been no agreement reached between the applicant and the objector in relation to any aspect of the proposed compulsory acquisition

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.

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

4.The Objector does not dispute that it is the Applicant's position that subdivision P of Division 3, Part 2 of the NTA does not apply, but only if the proposed compulsory acquisition is or would otherwise be a valid compulsory acquisition.

5.The proposed compulsory acquisition, being an acquisition of native title rights and interests in Crown land where there are no nonnative title rights and interests in that land and being made for the purposes of granting leasehold and freehold interests in the land, would not have been made if the land were subject to freehold title and is invalid by virtue of sections 910 of the Racial Discrimination Act 1975 (Cth).

6.The acquisition and the extinguishment of all native title rights and interests in the land under the proposed compulsory acquisition is not required for any proposed use of the land.

7.The proposed compulsory acquisition is unnecessary because no valid use of the land is proposed or is unnecessary for any proposed use of the land for which the acquisition is intended.

8.The purpose of the proposed compulsory acquisition or a substantial purpose of the proposed compulsory acquisition is to extinguish native title rights and interests in the land and thus the proposed compulsory acquisition is not for a purpose permitted by the Lands Acquisition Act (NT).

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

  1. On 22 October 2001 the Tribunal directed that all material be filed on or before 11 January 2002. This date has been extended from time to time by consent between the Applicant and the Objectors.
  2. On 28 March 2002 at a directions hearing convened by the Tribunal, the matter was set down for hearing for 5 days, commencing 13May 2002.
  3. 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 written submissions 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 issue to be determined by the Tribunal.

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

PRELIMINARY COMMENTS OF THE TRIBUNAL

  1. With reference to the Objectors’ Form 3 (2), the Tribunal perceives that the Objectors deny the act is valid although as set out in ground of objection (4) the Objectors do concede that sub-division P NTA does not apply.
  2. 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):-

(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. 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.
  2. 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.

  1. The applicant proposes to compulsorily acquire all of the land.
  2. 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 paragraph8 of this decision.

EVIDENCE AND/OR SUBMISSIONS

  1. 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.
  2. 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.
  3. As also already recounted previously in this decision, the objectors in their Form 3 concede that sub-division P NTA does not apply.
  4. An affidavit in support of the application was sworn by Noreen Alma Blackley on 18 October 2001 (“Blackley’s October affidavit”).
  5. In Blackley’s October affidavit, she deals with her employment position in the Department of Lands, Planning and Environment; her examination of the files; the history of the matter; and the searches conducted as a preliminary series of steps concerning the proposed acquisition.
  6. In paragraphs 6 to 12 of Blackley’s October affidavit, she refers to the publication of the Notice of Proposed Acquisition on 29November 2000 and deals with the requisite formal procedural steps taken to advance the proposed acquisition.
  7. In paragraph 13 of Blackley’s October affidavit, she refers to receipt of a Notice of Objection on 18December 2000, and annexes to her affidavit marked NAB-11 a true copy of such notice of objection.
  8. In paragraph 14 of Blackley’s October affidavit, she refers to an invitation to consult being forwarded to the Objectors and annexes marked WEC12 a true copy of the invitation to consult.
  9. In paragraph 15 of Blackley’s October affidavit, she refers to a second invitation to consult on 1 June 2001 and annexes marked WEC13 a true copy of that invitation.
  10. In paragraphs 16 and 17 of Blackley’s October affidavit, she deals with the formal submission of the application to the Tribunal.
  11. In paragraph 18 of Blackley’s October affidavit, she refers to correspondence from the Aboriginal Areas Protection Authority advising that there are no registered or recorded sacred sites on the land or as she expresses herself “within the area”. That correspondence is annexed to Blackley’s October affidavit and marked NAB16.
  12. Noreen Alma Blackley swore a second affidavit in support of the application on 21 November 2001 (“Blackley’s November affidavit”). She deposes to a search of files as a result of which, in paragraph 3, she identifies the location and the zoning (light industry) of the land.
  13. In paragraph 4 of Blackley’s November affidavit, she annexes marked NAB2 a tenure history and other documents related to that issue.
  14. In paragraph 5 of Blackley’s November affidavit, she refers to utilisation of the land by Australian National Railways (“ANR”) in the early 1970s. She deposes to the fact that construction was never completed; a valuation report is referred to and annexed marked NAB3; she concludes by adverting to “the railway corridor” being acquired by the Northern Territory by processes that are not specified.
  15. In paragraph 6 of Blackley’s November affidavit, she refers to the operation of a horticultural products business under and by virtue of a railway lease and then an occupation licence and she refers to construction having occurred on the land.
  16. Subsequently, it is said a named business applied for a lease upon the liquidation of the first mentioned business. Since 1July 1992 under occupation license no 3047, Lake Marong Pty Ltd (ACN not given), has apparently been operating a business on the land.
  17. In paragraph 8 of Blackley’s November affidavit, she refers to construction which occurred as a consequence of damage in the Katherine Flood on 26January 1998.
  18. In paragraph 9 of Blackley’s November affidavit, she annexes marked NAB4 a true copy of an aerial photograph of the land “dated 18 July 1998”. She deposes further to the fact that in September or October 2000 a security fence was constructed on the land and in paragraph 10 she describes the current or existing improvements to the land. She annexes marked NAB5 photographs of the land taken on 7November 2001 together with a plan of the premises in effect comprising a key to each photograph.
  19. In paragraph 11 of Blackley’s November affidavit, she deposes to the fact that on 12March 1998 the licencees made application for a direct sale of Crown land for commercial development and annexed to her affidavit marked NAB6 is said to be a true copy of that application. She says that expenditure of $150,000 is anticipated presumably on acquisition of the freehold.
  20. In paragraph 12 of Blackley’s November affidavit, she confirms the proposal to deal with the land as set out in annexure NAB6 to Blackley’s October affidavit.
  21. In paragraph 13 of Blackley’s November affidavit, she recites an offer of a Crown lease term convertible to an estate in fee simple subject to conditions, one of which is to undertake the proposed development of the land. She states that the purchase price is to be $250,000 which is the market value estimated by the Valuer-General.
  22. Ignoring paragraph 14 of Blackley’s November affidavit as the Tribunal must as in paragraph14 the Minister denies the existence of native title, the Tribunal passes on to traverse issues in paragraphs 15 concerning the basis of objection or part of it, together with some of the criteria expressed in section38AA LAA.
  23. Paragraph 15.1. of Blackley’s November affidavit addresses the “enjoyment by the native title claim group of any registered native title rights and interest and the way of life, culture and traditions of the native title claim group”:-