Ngunawal People v Australian Capital Territory

REASONS FOR JUDGMENT 1 On 24 May 2002 a native title determination application was lodged with the Court. The name of the applicant is Mr Dean Bell, who claims to have brought the application on behalf of the Ngunawal People, a native title claim group that includes himself and many others. The native title determination application relates to land in the Australian Capital Territory, although Mr Bell presently lives at Windsor in New South Wales. The application has not been notified or registered, although there is no suggestion that it will not be registered in the fullness of time. 2 Earlier this week, Mr Bell sought leave to file a notice of motion in the native title determination application proceeding seeking interlocutory relief formulated as follows: '1. An injunction to stop all land development on the Gungahlin Drive Extension immediately until consultation and discussion with the Aboriginal Traditional Owners about Cultural Heritage Issues. 2. Land development is only to commence after cultural Heritage Issues have been satisfactorily negotiated and agreed between all parties. 3. Appeal the decision to commence Gungahlin Drive Extension, given the Cultural Heritage Consultation and Issues were not addressed properly.' The notice of motion was supported by an affidavit by Mr Bell in which he said: 'I am the applicant for Native Title claim number N 6007/2002. The Gungahlin Drive Extension is located on an area of great cultural significance to the Ngunawal people. I was initially contacted by the National Capital Authority and Environment ACT approximately 12 months ago regarding the cultural heritage issues of the Gungahlin Drive Extension. This contact involved a Cultural Heritage walk of the proposed land development. On this walk, a very significant site was located and was to be recorded by Environment ACT. The site is at the end of the proposed road, and it was agreed, on site, by all parties to realign the road in order to protect and preserve the culture and Heritage of the Ngunawal People. NCA and ACT Government representatives were present and there was disagreement from one of the representatives initially, but later agreed. This was the last contact I had with the Gungahlin Drive extension. I telephoned the ACT Government about progress but was told nothing was happening approximately six months ago. I am now informed that consent to destroy the site has been signed off by an Aboriginal person who is not a traditional owner, but has occupied the area of the ACT. This person is of a different Aboriginal culture to the Ngunawal people, therefore NCA and the ACT Government rather than preserving and protecting Aboriginal Culture and Heritage, they had an Aboriginal person sign the consent to destroy a very significant site. This area of proposed work is within the boundary of my native title claim. It is proposed that work commences on Tuesday 15 March 2004.' 3 Notwithstanding the deficiencies in the form of that affidavit, I granted leave to Mr Bell to file his notice of motion returnable before me as Duty Judge today, and abridged time for service. The parties named in the application are the Australian Capital Territory and the National Capital Authority. The National Capital Authority is not an entity, but both the Australian Capital Territory and the Commonwealth were represented on the return of the motion before me today. 4 Mr Bell sought leave to file several documents as follows: