Andrew Watson on behalf of the Tjirrkarli-Kanpa native title claimants/WMC Resources Ltd/State of Western Australia

[2005] NNTTA 60

NATIONAL NATIVE TITLE TRIBUNAL

Andrew Watson on behalf of the Tjirrkarli-Kanpa native title claimants/WMC Resources Ltd/State of Western Australia, [2005] NNTTA 60 (23 August 2005)

Application No:        WO04/362

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Andrew Watson representing the Tjirrkarli-Kanpa Native Title Claimants – WC96/71 (native title party)

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The State of Western Australia (Government party)

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WMC Resources Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:      19 August 2005
Date of reasons:        23 August 2005

Catchwords:  Native title – future act – proposed grant of exploration licences – expedited procedure objection application – failure within a reasonable time to proceed with objection application – failure to comply with directions – objection application dismissed

Legislation:Native Title Act 1993 (Cth) ss 29, 148(b), 150

Cases:Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103

Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266

Counsel for the

native title party:              Mr Malcolm O’Dell, Ngaanyatjarra Council

Counsel for the

grantee party:  Ms Jean Bursle, Blake Dawson Waldron

Representative of the        

Government party:           Mr Greg Abbott, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 22 September 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E38/1703, E38/1704 and E38/1705 (‘the proposed licences’) to WMC Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure (that is, are future acts which can be done without the normal negotiations required by s 31 of the Act).

2. On 23 December 2004 Andrew Watson on behalf of the Tjirrkarli-Kanpa native title claimants – Native Title Claim No. WC96/71 registered from 24 June 1996 - (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licences.

3. The area, location and extent to which the proposed licences are overlapped by the registered claim of the native title party are as follows:

• E38/1703 – 214.26 square kilometres, 211 kilometres north easterly of Cosmo Newbery Mission in the Shire of Wiluna, 1.06% overlap;

• E38/1704 – 213.98 square kilometres, 204 kilometres north easterly of Cosmo Newbery Mission in the Shire of Laverton, 63.52% overlap;

• E38/1705 – 213.64 square kilometres, 198 kilometres north easterly of Cosmo Newbery Mission in the Shire of Laverton, 80.72% overlap.

1. On 29 June 2005 the Federal Court determined that the Ngaanyatjarra Lands native title claimants (WC04/3) were common law native title holders in respect of an area of land that includes the portion of the Tjirrkarli-Kanpa native title party’s claim which overlaps the proposed licences.  Tjirrkarli-Kanpa’s procedural right to negotiate is therefore retained by virtue of their inclusion in that determination.  In relation to E38/1704, the 63.52% overlap with the proposed licence now comprises 60.77% determined native title lands, while 2.75% remains claimed Tjirrkarli-Kanpa territory (not yet determined).

2. On 21 January 2005 Cyril Barnes on behalf of the Wongatha People – Native Title Claim No. WC99/1 also lodged an expedited procedure objection application with the Tribunal in relation to the proposed licences (WO05/14).  The Wongatha native title claim overlaps the proposed licences by the following percentages: E38/1703 - 98.94%, E38/1704 – 36.48%, E38/1705 – 19.28%.  This objection was withdrawn on 29 June 2005 following agreement between the grantee party and the Wongatha People.

Relevant facts

1. The Tribunal made directions on 10 January 2005 for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 23 May 2005. The directions contain a statement that an objection may be dismissed pursuant to s 148(b) of the Act if the objector fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal.

2. At a preliminary conference convened on 1 February 2005 the grantee party representative, Ms Jean Bursle, advised that WMC Resources was prepared to negotiate with the native title party regarding heritage protection.  At subsequent status conferences that Tribunal heard that parties were continuing to negotiate and on 23 May 2005 directions were amended with the agreement of all parties to enable discussion to continue.  Native title party compliance was required by 6 June 2005.

3. At an adjourned status conference on 25 May 2005 parties advised that negotiations had stalled because each party was waiting for information from the other. The native title party representative requested Tribunal mediation assistance pursuant to s 150 of the Act to which Ms Bursle subsequently agreed. As a result directions were amended on two subsequent occasions to allow s 150 conferences to take place, native title party compliance finally being required by 25 July 2005.

4. On 12 July 2005 s 150 mediation was terminated by Tribunal Member Bardy McFarlane owing to the parties’ inability to reach agreement and the objection application was referred back to the inquiry process. At a Listing Hearing convened on 14 July 2005 Ms Bursle, and the native title party representative, Mr Malcolm O’Dell, confirmed that the matter was to be heard and determined by a Tribunal member and directions were once more amended to permit native title party compliance on or before 1 August 2005.

5. On 2 August 2005 the Tribunal received written advice from the native title party that it would not be supplying contentions in relation to the matter and awaited the Tribunal’s decision.  Further email correspondence clarified that, because of resourcing issues, the native title party would require compliance dates to be extended for as long as two months to enable submissions to be prepared.  Mr O’Dell stated that in anticipation of a refusal of this request the native title party instead intended to seek whatever legal remedies were available by virtue of the determination that native title exists on portions of the subject area.    

6. The Government party and grantee party have complied with directions.  The grantee party contends that the objection should be dismissed and the proposed licences granted via the expedited procedure.  To date, no contentions or evidence from the native title party has been forthcoming.

7. On 19 August 2005 I convened a Listing Hearing, at which Mr O’Dell advised that native title party instructions were not to comply with directions. Mr O’Dell clarified that Tjirrkarli-Kanpa intended to take legal action via whatever alternative means may be available to them as a result of their status as common law native title holders. Further, the representative body did not have sufficient resources to adequately support contentions in relation to sites in the vicinity of the proposed licences within short timeframes. The Government party made application to dismiss the objection application pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party. The grantee party supported that requested.

Conclusion

1. It is clear that the native title party has failed to comply with directions, and that it does not intend to prosecute this objection further.  I therefore find that the native title party has failed within a reasonable time to proceed with its objection and to comply with the Tribunal’s directions, having submitted no statements of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.  In coming to my decision I have applied the general principles established by Member Sosso in Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at para [13]), and more specifically the findings of Member Sosso in Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103 (at para [19]-[20]) and Noy and Others v Northern Territory of Australia [2003] NNTTA 37; (2003) 174 FLR 366 (at [15]-[17]) in relation to a stated intention by a native title party not to comply with directions.

2. I note for the record that the Government party has also proposed an extra condition to be imposed on the grant of the proposed licences, requiring that the grantee party, if so requested by the Tjirrkarli-Kanpa People within ninety days of the grant of the proposed licences, shall within thirty days of the request execute the Regional Standard Heritage Agreement applicable to certain native title claims in the Ngaanyatjarra Council region in favour of the Tjirrkarli-Kanpa People in respect of the area covered by the proposed licences.  The native title party has said that this Regional Standard Heritage Agreement is not acceptable in the circumstances of this case and so the condition may not be acted upon.  Nevertheless, the condition does indicate the Government party’s view that Aboriginal heritage should be protected.  I also note that the grant of the proposed licences will still remain subject to relevant environmental and heritage legislation, including the provisions of the Aboriginal Heritage Act 1972 (WA) and conditions imposed on the grant of the licences, and the grantee party’s statement of contentions (at 6(c) and (d)) indicate that it is well aware of those provisions.

Decision

1. The objection application WO04/362 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
23 August 2005