CITATION:
Minister for Lands, Planning and Environment v Risk and others (2000) NTLMT 003
PARTIES:
MINISTER FOR LANDS, PLANNING AND
ENVIRONMENT
v
MAXWELL RISK ON BEHALF OF THE
LARRAKIA PEOPLE AND TIBBY KEVIN
LANCE QUALL
TITLE OF COURT:
LANDS AND MINING TRIBUNAL
JURISDICTION:
LANDS AND MINING TRIBUNAL
FILE NO(s):
LMT6-2000-LA(N) (20012962)
DELIVERED ON:
13 November 2000
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 (Cwth), s26, s253
Lands Acquisition Act 1978 (NT), s38AA
Lands and Mining Tribunal Act 1998 (NT), s5
REPRESENTATION:
Counsel:
Applicant:
First Objector:
Second Objector:
Not applicable
Not applicable
Not applicable
Solicitors:
Applicant:
First Objector:
Second Objector:
Solicitor for the Northern Territory
Northern Land Counsel
Self
Judgment category classification:
Judgment ID number:
Number of paragraphs:
B
NTLMT (2000) 003
72
IN THE LANDS AND MINING TRIBUNAL
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. LMT6-2000-LA(N) 20012962
BETWEEN:
MINISTER FOR LANDS, PLANNING
AND ENVIRONMENT
Applicant
AND:
MAXWELL RISK ON BEHALF OF
THE LARRAKIA PEOPLE
First Objector
TIBBY KEVIN LANCE QUALL
Second Objector
DECISION
(Delivered 13 November 2000)
David LOADMAN, CHAIRMAN
JURISDICTION
1.
The Minister has referred the issue of the compulsory acquisition of part Lot
5794, Town of Darwin, Ludmilla Locality, (“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.
2.
By virtue of section 5A LAA this intended acquisition invokes th e
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
3.
Section 24 MD (6A) NTA is part of Subdivision M of NTA.
4.
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.
5.
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.
6.
“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.
7.
In Subdivision P, NTA the “Right to Negotiate” provisions are set out in
section 25 NTA.
8.
Section 26 NTA specifies when the right to negotiate provisions apply.
9.
In 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 interests and that relates solely to land or waters wholly within a
town or city (see section 251C)”.
10.
Section 251C of NTA, “towns and cities” in relation to the Northern
Territory states in part:
“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:
2
(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 DLAA (Commonwealth); or
(c) within a municipality constituted under section 29 of the Local
Government Act of the Northern Territory.”
11.
Attached to a letter dated 17 October 2000 from the Solicitor for the
Northern Territory and marked with the letter A, is a map prepared by the
Department of Lands, Planning and Environment identifying the land and
the area described in the Schedule of DLAA. By virtue of
Section 251C(3)(b)of Division P NTA does not, it is submitted, apply and
in any event that concession is made by the NLC on behalf of the first
objector. There is no contrary submission by the second objector. The
second objector has filed no material and indeed made no communication of
any description with the Tribunal in this matter.
12.
Section 5 of the 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” “so far as it
affects the registered native title rights and interests of the claimants…”.
13.
“Registered native title claimant” in terms of LMT “has the meaning given
in section 253 of the Native Title Act...”
14.
Section 253 NTA provides “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
Claimants as the applicant in relation to a claim to hold native title in
relation to the land or waters.”
3
15.
“Registered native title rights and interests” is defined pursuant to section
3(1) LMT as (relevantly):
“registered native title rights and interests 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;…”
16.
In respect of the first-named objector, the registered Native Title rights and
interests are as set out in annexure NAB1 to Blackley’s affidavit (as defined
in paragraph 28 of this decision of the Tribunal).
17.
The Native Title rights and interests of the second objector are set out on
annexure NAB2 to Blackley’s affidavit.
18.
The power in section 5 LMT is expressed to be subject to subsection (2)
LMT 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.
19.
Those provisions, in broad compass, deal with compulsory consultation and
mediation issues.
20.
It is the fact that the Tribunal cannot deal with issues of compensation until
or unless the Federal Court has ruled that the Native Title “claim” to the
land should be upheld.
21.
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.
22.
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
4
native title bodies corporate to the acquisition so far as its affect the
registered native title rights and interests of the claimants and bodies).
23.
Section 22(1) provides relevantly that the Tribunal may make a
recommendation under section 5(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.”
24.
Section 22A LMT empowers the Tribunal to dismiss an objection by virtue
of subsection (2) on specified grounds. The objection in this matter ought
not be dismissed there being no grounds to do so.
25.
Section 38AA LAA specifies the criteria which must be considered by the
Tribunal in making its recommendation. That section is 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;
5
(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.”
26.
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 enquiry was made of
all parties by letter of 13 October 2000. The written responses from the
applicant and the first objector record that no agreement has been reached
on any issue. There has been no response by or on behalf of the second
objector.
THE EVIDENCE
27.
The evidence filed with the Tribunal on behalf of the applicant in this matter
is contained in two affidavits.
6
28.
The first of those affidavits is an affidavit sworn by Nore en Alma Blackley
on 22 August 2000 (“Blackley’s affidavit”). The second is the affidavit of
John Reginald Gordon sworn 22 August 2000 (“Gordon’s affidavit”).
29.
The land is referred to at paragraph 3 of Blackley’s affidavit, being land
which surrounds on three sides Lot 5319, Town of Darwin.
30.
In paragraph 4 of Blackley’s affidavit, she refers to annexure “NAB1” being
a search of the Register of Native Title Claims in relation to application
DC96/7. The registered native title claimant in that application being Mr
Bill Risk. Reference to that document reveals that Mr Bill Risk makes the
claim on behalf of the Larrakia people and all other persons set out in an
attachment thereto lettered “A”.
31.
In paragraph 4 of Blackley’s affidavit similarly reference is made to
annexure “NAB2” from the Register of Native Title Claims relating to
application DC96/6. The registered native title claimant in this application
is Mr Kevin Tibby Quall. Reference to NAB2 reveals that the claim of Mr
Quall is on behalf of the Dangalaba Clan.
32.
By paragraph 5 of Blackley’s affidavit reference is made to NAB3 being a
search certificate for the land obtained as a consequence of searching the
Register maintained by the Registrar-General under the Real Property Act.
The land is revealed, by that search, to be a parcel of vacant Crown land
which “has been set aside to the Power and Water Authority” “PAWA” for
extension to the Ludmilla Waste Water Treatment Plant with no current title
issued”.
33.
The matters contained in paragraph 6 to 14 of Blackley’s affidavit deal with
the procedural steps taken to further the intended compulsory acquisition of
the land.
7
34.
In paragraphs 15 and 16 respectively of Blackley’s affidavit, reference is
made to “NAB17” and “NAB18”, being copies of the objections fi led by
each of the objectors in this application.
35.
The matters contained in paragraphs 17 to 27 inclusive of Blackley’s
affidavit deal with the consultation and mediation process, that is the
process required in sections 36 and 37 LAA.
36.
In Gordon’s affidavit he states in paragraph 3 that a Mr Russell Jennings of
PAWA wrote to the Manager, Property Purchasing of the Department of
Lands, Planning and Environment seeking an extension to Lot 5319, “the
Lot on which the Ludmilla Waste Water Treatment Plant is operated, in the
order of a strip of land 50 metres wide of the western and eastern boundaries
of Lot 5319 and 75 metres wide on the northern boundary”.
37.
Due to an hiatus which occurred as a consequence of the Federal
Government’s proposed “ten point plan”, the matter was not at the time of
receipt of the letter referred to in paragraph 36 proceeded with. As set out
in paragraph 6 of Gordon’s affidavit, following amendments to the Native
Title Act which came into effect on 30 September 1998, the issue of the
proposed extension to the Ludmilla Waste Water Treatment Plant was reactivated.
38.
The application to the Tribunal is, according to paragraph 8 of Gordon’s
affidavit, intended to result in a formal offer for the land being solicited in
the event that the compulsory acquisition of the land takes place.
39.
In paragraphs 9 and 10 of Gordon’s affidavit, reference is made respectively
to a Public Environment Report (“PER”) prepared by consulting
environmental engineers, a copy of the Executive Summary of that report,
“JRG4”, being annexed. He further refers to an Environmental Assessment
Report and Recommendations prepared by the Environment and Heritage
8
Division of the Department in December 1998, annexed and marked “JRG5”
to Gordon’s affidavit.
40.
Paragraph 11 of Gordon’s affidavit sets out matters said to be significant,
being:
“11. The economic or other significance of the acquisition to the
Territory and to the region and the public interest in the acquisition
are identified in the Executive Summary and part 2 of the EARR and
more particularly in the PER. In particular:
(a)
The proposed extension to the Ludmilla Waste Water
Treatment Plant is part of a greater proposal to upgrade the Plant and
its associated facilities. This upgrade is a key step in the
implementation of the Darwin Sewerage Strategy of 1996 (see part 2
of the EARR). The goals of the Sewerage Strategy are to augment the
Darwin sewerage system to handle future growth in residential,
commercial and industrial flows, to upgrade the treatment and
effluent outfall facilities to meet increasingly stringent
environmental requirements and to reuse an increasing proportion of
effluent and biosolids in the future.[Tribunal underlining]
(b)
The major components of the proposal to upgrade the Plant are
set out in part 1.6 of the PER.
(c)
The proposal to upgrade the Plant is required for various
reasons including:
(i)
to ensure that the effluent discharged through the
Larrakeyah outfall has received a suitable level of
treatment;
(ii)
to provide secondary treatment at the Ludmilla Plant as
is provided at the other treatment facilities in Darwin;
(iii)
to provide capacity for future increases in wastewater
flows; and
(iv)
to minimise the effects of effluent discharges on ocean
water quality,
(see part 1.4 of the PER)
(d)
One of the potential long term environmental implications for
the land environment is that odour emissions from the
9
Ludmilla Plant will be reduced as a result of the aeration
processes and additional odour control facilities (see part 1.10
of the PER).
(e)
As a result of the proposed upgrade to the Plant, each of the
regions near the Larrakeyah outfall, East Point outfall and
Ludmilla Creek will discharge higher quality effluent. The
total solids load discharged into Darwin Harbour from the
Larrakeyah outfall will decrease by about 25 per cent. The
quality of the effluent will be improved on the present quality
on some days and the total annual solids load discharged at
East Point will decrease. All effluent, even in wet weather,
will be screened and receive primary treatment at least, which
will eliminate the present problem of floatables being
discharged into the ocean and Ludmilla Creek (see part 1.11 of
the PER). .[Tribunal underlining]
(f)
The potentially beneficial environmental impacts are set out in
part 1.12 of the PER. They are:
(i)
Removal of present macerated sewage discharge at
Larrakeyah;
(ii)
Reduction of frequency of discharge through East Point
outfall;
(iii)
Substantial reduction of number of days of overflow, and
improved treatment before discharge to Ludmilla Creek;
.[Tribunal underlining]
(iv)
Reclaimed water available for reuse;
(v)
Potential long term prospect for reuse of biosolids;
(vi)
Reduction in organic and nutrient loads discharged to
Darwin Harbour; .[Tribunal underlining] and
(vii) Substantial reduction in organic and nutrient loads
discharged at East Point in the dry season, and also a
significant reduction over each year. .[Tribunal
underlining]
(g)
The proposal implements a cost effective development strategy
which makes good use of existing facilities and sites and provides
capacity for future increases in wastewater flows from the area
sewered (see part 1.5 of the PER).”
10
[“PER” is the executive summary of the Public Environemnt Report
referred to in paragraph 9 of Gordon’s affidavit: “EARR” is the
Environmental Assessment Report and Recommendations in
paragraph 10 of Gordon’s affidavit. ]
41.
The Tribunal assumes that there are no paragraphs missing from Gordon’s
affidavit. The reason for raising the issue is because the concluding
paragraph, which is of a formal nature, is numbered 15 and the numbering is
not in that sequence.
FINDINGS OF THE TRIBUNAL.
42.
In relation to the first objector, NLC on his behalf has not filed any material
in support of the objections or put in issue the allegations contained in
Blackley’s and Gordon’s affidavits
43.
However, by letter of 9 October 2000 relevantly on behalf of the first
objector the following matters are raised:
(a)
“the mangrove creek and sea areas continue to be an important
source of resources (particularly food, including fish and shellfish)
for the Larrakia. In the vicinity of the sewerage plant these resources
have been adversely impacted by the overflows of effluent to
Ludmilla Creek, the Larrakia being well aware of the vicinity of the
plant and the overflow practices”;
(b)
“the Environmental Assessment Report and Recommendations
(‘the report’) prepared by the Department of Lands, Planning and
Environment (annexure JRG5 to the affidavit of John Reginald
Gordon) contains statements regarding mitigation measures and
goals. However at page 21 of the report it is noted that “the
discussion of the existing Ludmilla Creek environment is not
sufficient to make a judgment on the present and future impacts of
wastewater overflow to Ludmilla Creek ... A catchment wide
approach to water and biota monitoring in Ludmilla Creek is
needed”. There is no evidence that this catchment wide approach has
been adopted”;
(c)
At page 23 of the report it is noted that an Authority
Certificate from the Aboriginal Areas Protection Authority’s Register
of Sacred Sites has not been applied for (as at the date of the report),
11
although it is noted that this is a statutory requirement. It is
submitted that such a certificate should be obtained prior to
consideration of the matter by the Lands and Mining Tribunal. If
such a certificate has been obtained, copies to be provided to the
Tribunal and the respondent [sic]”
44.
In relation to 44(a) above:
(i)
the Tribunal refers to paragraph 39 of the decision and to the
portions of the material underlined in the quotation from paragraph 11 of
Gordon’s affidavit, being (a) “to upgrade the treatment and effluent outfall
facilities to meet increasingly stringent environmental requirements ...”; (e)
with a reference to screening and primary treatment “which will eliminate
the present problem of floatables being discharged into the ocean and
Ludmilla Creek”; (f)(iii) After referring to beneficial impacts set out in
part 1.12 of the PER “substation reduction of number of days of overflow,
and improved treatment before discharge to Ludmilla Creek”; (f)(vi)
“reduction in organic and nutrient loads discharged to Darwin Harbour”;
(f)(vii) substantial reduction in organic and nutrient loads discharged at East
Point in the dry season, and also a significant reduction over each year”.
45.
From the above allegations, there being no evidence to the contrary of
behalf of either of the objectors, the Tribunal must conclude that if the
proposed extension takes place, there will be a beneficial effect in regard to
the matters raised in objection (a) in paragraph 13.
46.
In regard to paragraph 43(b) above: firstly it is obvious that at page 21 of
the report referred to in paragraph 40 of this decision that the focus of the
report is on “future impacts of wastewater overflow”. Whether or not this is
discretely different from issues relating to sewerage effluent this Tribunal
cannot say but it seems in any event that that is a possibility. In the
quotation in the first paragraph at page 21 of this report which is part of
paragraph 3.2.10 it is stated “PAWA’s goal is for the overflows of effluent
to Ludmilla Creek to have minimal impact on marine life and adjacent
recreation” it is asserted “A major benefit of the augmentation of the
12
Ludmilla WWTP is the reduced number of overflow vents to Ludmilla Creek
from approximately 100 to 8 per year. The overflows would also be of
better quality. It is a current discharge license requirement that PAWA
report any overflow events into Ludmilla Creek to DLPE”.
47.
The only deduction to be made from those assertions is that whatever the
present problems are, utilisation of the land to augment the existing facility
will be substantially beneficial and effectively substantially discharge or
substantially ameliorate the problems referred to by the NLC on behalf of
the first objector.
48.
In respect specifically of the comment concerning the “catchment wide
approach” not being adopted, indeed at recommendation 14 of the EARR it
is recommended that PAWA, by liaison with the Ludmilla Creek Landcare
group and the Darwin City Council, “should actively support environmental
monitoring associated with a catchment wide approach”. This Tribunal is
entitled to impose conditions and is prepared to stipulate a condition to the
same affect as the said recommendation 14. Such condition therefore
addressing that issue raised by the first objector.
49.
In regard to 44(c) above: The legislation in relation to the submission
referred to above is the Northern Territory Aboriginal Sacred Sites Act .
50.
The applicant by letter of 11 October 2000 states unequivocally “As far as I am aware, no Authority Certificate has been sought to
date from the Authority in relation to the land the subject of this
proceeding.”
51.
The applicant also adopts the contents of a letter of 11 October 2000
addressed to the Tribunal in response to a similar assertion in regard to
another matter, the particulars of which are not relevant for the purposes of
this decision. To avoid restating matters which have already been
committed to writing the Tribunal refers to the contents of the said letter of
11 October 2000.
13
52.
Further the Tribunal refers to Sections 20 and 34 of the Northern Territory
Aboriginal Sacred Sites Act (NTASSA).
53.
In relation to section 20 NTASSA, the relevant subsection is (1) and for ease
of reference it is set out as follows:
“(1) A person who proposes to use or carry out work on land may
apply to the Authority for an Authority Certificate.”
54.
In regard to section 34 NTASSA, subsection (1) provides relevantly that a
“person shall not carry out work on or use a sacred site”.
55.
The Tribunal holds that it is not required of the applicant that it should
obtain the certificate, as alleged on behalf of the Yangman-Mangarrayi
People prior to the Tribunal making any recommendation. Further and most
relevantly, the Tribunal holds that it is not necessary that such a certificate
should be obtained prior to this Tribunal considering the matter. This
Tribunal in this matter will make a recommendation in regard to the
acquisition of the land. The Minister may or may not accept that
recommendation, but in the event it is certainly in the Tribunal’s finding
completely unnecessary to contemplate complying with the NTASSA prior
to arriving at a recommendation.
56.
The next issue to be addressed by the Tribunal in the absence of any
substantive material filed on behalf of the objector is to embrace the
imperative direction contained in Section 38 LAA sub -section 2(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 are referred to the
Tribunal ....”. The Tribunal has of course dealt with the matters raised in
the letter on behalf of the first objector from NLC dated 9 October.
57.
The Tribunal will now turn to a consideration of the specific objections
raised by each of the first and second objectors in the Notices of Objection
referred to in paragraph 15 and 16 of Blackley’s affidavit being respectively
14
annexures NAB17 and NAB18. In relation to NAB18 the Tribunal notes
that the “cover sheet” from the second objector refers to “Notice of
Objections (4 pages)”. There appears however to be only a single page
comprising form 4 as prescribed by section 34(3) LAA. The fact that it is
the entirety of the communication seems to be confirmed from the second
objector’s objection which is attached to the material which accompanies the
applicant’s referral of this matter to the Tribunal in the first instance. The
effective objection contained in that document is “1. t he effect of
development to extinquishment of Native Title rights and interests”
“2. Effect of ecology and environment”. The objections made in the
document NAB17 are contained in attachment A to that objection and in
their terms firstly more extensive than the objections specified by the second
objector above, but further embrace (together with those matters raised in
the letter of the NLC addressed to the Tribunal on behalf of the first
objector and set out in paragraph 43 above) the matters set out in the
objection of the second objector NAB18. In the circumstances the Tribunal
will focus on those objections specified in the said attachment A to the first
objector’s objection and will address them in the order that they are set out
in that attachment.
58.
Paragraph 2(a)(b)(c)(d)(e)(f). The immediate and adjacent surrounding area
is already in part utilised for the purposes of waste treatment. The land does
not appear, from any material filed, to have been the subject of any current
or indeed identified past usage by or on behalf of the first objector. In the
circumstances in relation to the grounds of objection lettered 2(a) -(f)
inclusive, the Tribunal is unable to make any specific finding but insofar as
there is any validity in regard to those objections the Tribunal finds that in
the event of the determination to the Federal Court being successful,
compensation which must follow such successful application would be a
sufficient recompense to overcome the deprivation as alleged (the standard
Tribunal finding).
15
59.
Paragraph 2(g) and (h). There is no evidence of the existence of any of the
matters referred to in these paragraphs. Insofar as there may be some basis
upon which there is validity to the objection, the Tribunal makes the
standard Tribunal finding.
60.
Paragraph 2(i) and (j). There is nothing before the Tribunal which would
enable the Tribunal to conclude there is any validity to these objections.
Insofar as there may be any validity the Tribunal makes the standard
Tribunal finding.
61.
Paragraph (3). It is trite that the acquisition of the land will extinguish all
Native Title rights and interests in the land but in that respect the Tribunal
makes the standard Tribunal finding.
62.
Paragraph 3(a). It cannot be the case on the evidence made available to the
Tribunal, that any of the activities referred to have been carried on “on the
land”. In the circumstances the Tribunal cannot make any finding as to
whether there is any validity to the objection, but insofar as there may be,
the Tribunal makes the standard Tribunal finding.
63.
Paragraph 3(b). This is a repetition of matters in paragraph 2 of the
objection, but insofar as there is any discrete difference, the Tribunal makes
the standard Tribunal finding (in regard to the first bullet point). In respect
of the second bullet point, the Tribunal asserts there is nothing to indicate
the existence of any valid basis for concluding that there is the infringement
claimed, and insofar as there may be, the Tribunal makes the standard
Tribunal finding.
64.
Paragraph 3(c). The Tribunal makes the standard Tribunal finding.
65.
Paragraph 3(d). The Tribunal makes the standard Tribunal finding.
16
66.
Paragraph 4. This is a repetition of grounds already stated in paragraph 2 of
the objection. Insofar as there is any discrete difference, The Tribunal
makes the standard Tribunal finding.
FINAL FINDINGS OF THE TRIBUNAL
67.
By virtue of the allegations contained in paragraphs 6 to 14 of Blackley’s
affidavit, the Tribunal holds that there has been compliance with sections 36
and 37 LAA and the matter is consequently properly and lawfully before the
Tribunal pursuant to provisions of Section 38 LAA. The Tribunal asserts it
has jurisdiction to deal with the reference.
68.
Sub-division P NTA does not apply to the compulsory acquisition of the
land.
69.
The intended purpose in respect of the acquisition of the land has prodigious
economic and environmental significance to the Territory and to the region
in which the land is located. There are no Aboriginal peoples who live in
the region according to the information provided to the Tribunal. The public
interest in the acquisition is, in the Tribunal’s finding, profound. These
criteria are both specifically set out in Section 38AA LAA.
70.
The matters referred to in the preceding paragraph are of such significance
that they outweigh the non-implementation of the intended use on the
grounds stated by the objectors or either of them, whose rights if any as
infringed will be adequately addressed by compensation available pursuant
to the relevant legislation. Recommendation 14 as set out at page 21 EARR
annexure JRG5 to Gordon’s affidavit should be implemented by PAWA in
conjunction with and not as a condition precedent to any expansion of the
treatment facility which may follow the delivery of the Tribunal ’s
recommendation.
71.
In its letter of 13 October 2000, the Tribunal asked the parties to deal with
the following matters:- (a) whether cross-examination of any deponent to
17
any affidavit was required; (b) whether any submissions orally or in
writing were to supplement the material filed with the Tribunal; and
(c) whether the Tribunal was to decide the matter on the papers, that is
without any oral ventilation or argument. The answer on behalf of the
applicant and the first objector was to the effect that in relation to any
cross-examination by the first objector it was not required and that neither
of those parties wish to make further submissions or to have further oral
ventilation of any matter. No response was received on behalf of the second
objector.
RECOMMENDATION OF THE TRIBUNAL .
72.
The Tribunal recommends that the applicant acquire the land for the purpose
stated. The Tribunal recommends that the grantee acquire the use of the
land in whatever appropriate manner, but subject to the condition that it
embrace Recommendation 14 referred to in the preceding paragraph.
Dated: 13 November 2000
DAVID LOADMAN
CHAIRMAN
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