PARTIES: Minister for Lands, Planning and Environment

CITATION: Minister for Lands, Planning and Environment v Risk and others NTLMT 43 and 29

PARTIES: Minister for lands, planning and environment

WILLIAM MAXWELL RISK ON BEHALF OF THE LARRAKIA PEOPLE

TIBBY QUALL ON BEHALF OF THE DANGALABA PEOPLE

TED STANTON AND OTHERS ON BEHALF OF THE KUNGARAKAN PEOPLE

KATHLEEN MILLS AND OTHERS ON BEHALF OF THE KUNGARAKAN PEOPLE

TITLE OF COURT: Lands and Mining Tribunal

JURISDICTION: Lands and Mining Tribunal Act

FILE NO(s): LMT-43 AND 29-2001-LA(N) (20110627 AND 20102905)

DELIVERED ON: 15 August 2002

DELIVERED AT: Darwin

HEARING DATE(s): 24 – 28 June 2002, 16 – 17 July 2002

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: Michael Grant

1ST, 3RD & 4TH Objectors: Angus Frith

2nd Objector Self

Solicitors:

Applicant: Carolyn Walters, Ward Keller

1ST, 3RD & 4TH Objectors: Kirsty Gowans, Northern Land Council

2nd Objector Self

Judgment category classification: b

Judgment ID number: NTLMT 43 AND 29

Number of paragraphs: 386

IN THE LANDS AND MINING TRIBUNAL

AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA

No. LMT-43 AND 29 -2001-LA(N) (20110627 AND 20102905)

BETWEEN:

minister for lands, planning and environment

Applicant

AND

WILLIAM MAXWELL RISK ON BEHALF OF THE LARRAKIA PEOPLE

1st Objectors

TIBBY QUALL ON BEHALF OF THE DANGALABA PEOPLE

2nd Objector

TED STANTON AND OTHERS ON BEHALF OF THE KUNGARAKAN PEOPLE

3rd Objectors

KATHLEEN MILLS AND OTHERS ON BEHALF OF THE KUNGARAKAN PEOPLE

4th Objectors

DECISION

(Delivered 15 August 2002)

DAVID loadman, CHAIRPERSON

INTRODUCTION

1. On 15 November 2001 the Tribunal made an order that two matters, namely LMT-43 and LMT-29 would be heard simultaneously. This decision therefore will be in relation to both these matters and henceforth respectively each of them will be referred to as “LMT-43” and “LMT-29”.

2. NOTE: The Tribunal has adopted almost verbatim the contents of submissions made on behalf of the applicant headed “Outline of Applicant’s Submissions” (“Grant’s submissions”) and sets them out in this decision for purposes of being of assistance in the production of a comprehensive decision. The relevant paragraphs have been inserted in different font (and in blue). The Tribunal is indebted to Mr Grant for his submissions and the ability to be able to adopt them.

HISTORY - LMT-43

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

All that parcel of land near Berry Springs in the Hundred of Ayers, Northern Territory of Australia containing an area of 2540 hectares more or less and bounded by lines described as follows:

Commencing at the southeastern corner of Section 1595; thence westerly, across Finn Road and again westerly by the southern boundaries of Sections 1595 and 1596 to the most eastern northeastern corner of Section 1786; thence westerly, northwesterly and southwesterly by a northern, a northeastern and part of a northwestern boundary of the said Section to the centreline of Berry Creek; thence generally northwesterly by the said centreline and its prolongation northwesterly to the centreline of Blackmore River; thence generally northeasterly and northwesterly by the said centreline to a point situated at Map Grid Coordinates 713 200 metres East 8 600 800 metres North; thence northeasterly to Map Grid Coordinates 713 700 metres East 8 601 700 metres North; thence northeasterly to the intersection of Map Grid line 8 603 000 metres North with a southwestern boundary of the Alice Springs to Darwin railway corridor, being Section 1847 Hundred of Ayers; thence generally southeasterly by southwestern boundaries of the said Section to the eastern boundary of Section 1631; thence southerly by part of the said boundary and part of the eastern boundary of Section 1598 to a point 1200 metres southerly of its northeastern corner; thence northeasterly to a point on the eastern boundary of Section 1599 situated 600 metres northerly of its southeastern corner; thence southeast to intersect a line 200 metres easterly of and parallel to the eastern boundary of Section 1599; thence southerly by the said line and its prolongation southerly across a road 20.12 metres wide to a point 300 metres southerly of the northern boundary of Section 1594; thence westerly by a line 300 metres southerly of and parallel to the said boundary to the eastern boundary of Section 1595; thence southerly by the eastern boundary of Section 1595 to the point of commencement, all coordinates being Zone 52, Map Grid of Australia 1994.

(“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.

4. According to the Notice of Proposal dated 26 September 2000 the manner in which the Territory proposed to deal with the land if it was acquired is as follows:

Future subdivision works undertaken for the development of land for a future aquaculture, rural residential and industrial precinct for the Town of Weddell.

Upon completion of the works, the land will be available under the provisions of the Crown Lands Act for the grant of freehold title, leasehold or leasehold convertible to freehold. The land may also be available for future grant for public and community purposes.

Grant of 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 the Power and Water Authority, Litchfield Shire Council and telecommunications companies etc.

5. The first objectors by Notice of Objection dated 16 September 2000 objected to the proposed acquisition of the land. That objection has not been set out here for reasons that will become apparent.

6. The second objector has by Notice of Objection dated 2 October 2000 objected to the proposed acquisition of the land. The objection is in these terms:

Native title rights and interests
Native title application
Lands and Mining Tribunal
Access
Consultation.

In practical terms it would seem to the Tribunal that the so-called objection is meaningless.

7. The third objectors have by Notice of Objection dated 6 October 2000 objected to the proposed acquisition of the land. Attachment A to that document reads

1 Part 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 2 December 1999, and .registered by the National Native Title Tribunal on 20 December 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. 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 of 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.

8. The fourth objectors have by Notice of Objection dated 18 December 2000 objected to the proposed acquisition of the land. Attachment A to that document reads

1. The land proposed to be acquired is subject to an application (`the Application') for determination of native title filed in the Federal Court on 18 December 2000, 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 or the native title holders are set out in the Application. The rights and interests may be summarised as follows: