Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd

[2005] NNTTA 59

NATIONAL NATIVE TITLE TRIBUNAL

Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, [2005] NNTTA 59 (23 August 2005)

Application No:        WO05/5

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

-and-

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

Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants - WC99/19 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Wolsog Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            12 August 2005
Date of reasons:              23 August 2005

Catchwords:  Native title – future act – proposed grant of exploration licence – 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)

Cases:Little v Western Australia [2001] FCA 1706 (6 December 2001); (2001) 6(4) AILR 67

Ruby Saltmere (Indjilandji/ Dithannoi)/Queensland/Savannah Resources Pty Ltd, NNTT QO04/94, [2005] NNTTA 54 (5 August 2005), John Sosso

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

Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265

Representatives of the       Ms Olivia McMahon, Kimberley Land Council

native title party:               Ms Judith Bornstein, Kimberley Land Council

Representative of the

grantee party:  Mr Ian Veale, Wolsog Pty Ltd

Representative of the        

Government party:           Mr Clyde Lannan, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 6 October 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1413 (‘the proposed licence’) to Wolsog Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).

2. On 17 January 2005 Banjo Wurrunmurra, Adam Andrews, Johnny Marr, Bradley Williams, Rita Dann, Billy Oscar, Isaac Hale and Danny Marr on behalf of the Bunuba native title claimants – native title claim application no. WC99/19 registered on 20 August 1999 - (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence.

3. The proposed licence, totalling 16.33 square kilometres, is located 86 kilometres northwest of Fitzroy Crossing in the Shire of Derby-West Kimberley and overlaps the Bunuba native title application (WC99/19) at 100%.

Relevant facts

1. The Tribunal made directions on 3 February 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 7 June 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. Two preliminary conferences were convened on 16 February and 29 March 2005 in which party representatives indicated that some discussions had occurred in relation to a heritage protection agreement.  At the third preliminary conference on 12 April 2005, the grantee party indicated that the agreement was unacceptable and requested that the matter move to inquiry.

1. On the 30 May 2005, the native title party requested an extension to 28 June 2005 in order to provide its contentions and evidence.  The grantee and Government parties consented to the request and accordingly I amended Directions to require native title party compliance by 28 June 2005 and a listing hearing on 7 July 2005.  Parties were advised in writing of this amendment on 15 June 2005.

2. At the listing hearing on 7 July 2005, the native title party again requested an extension of time to make its submissions, being a further six weeks.  After some discussion all parties consented to a four week extension, although the grantee and Government parties' consent was conditional upon no further requests for extensions being submitted by the native title party.  Accordingly I amended Directions to require native title party compliance by 29 July 2005 and a listing hearing on 12 August 2005.  Parties were advised of this amendment in writing on 15 July 2005.

3. The Government party complied by the due date stated in the original Directions (being 30 May 2005).  The grantee party made its submissions one working day following the due date stated in the amended Directions (being 5 August 2005).  To date, no contentions or evidence from the native title party has been forthcoming.

4. On 8 August 2005, the Tribunal wrote to all parties outlining the history of the direction amendment requests, noting that the listing hearing of 12 August 2005 would be heard before me, and that I would consider whether it was appropriate to dismiss the objection application under s 148(b) of the Act. No response was received by the Tribunal from the native title party addressing the issues raised in this correspondence.

5. On 12 August 2005 I convened a listing hearing by telephone, at which the Government and grantee 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 native title party representatives did not attend the hearing despite being informed of the date and time and despite attempts to contact them by telephone.

6. It has been clear to the native title party since 12 April 2005 that there was no prospect of a mutually agreed outcome and therefore that contentions and evidence for an inquiry were necessary.

7. In Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at [13]) the Tribunal (Member Sosso) set out the principles applicable when considering dismissal of an objection application under s 148(b) of the Act which I have had regard to in this matter. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure application (see also Ruby Saltmere (Indjilandji/ Dithannoi)/Queensland/Savannah Resources Pty Ltd, NNTT QO04/94, [2005] NNTTA 54 (5 August 2005), John Sosso citing the Federal Court in Little v Western Australia [2001] FCA 1706 (6 December 2001); (2001) 6(4) AILR 67 (at [85]) (per Nicholson J) and Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265 at 278 (per Lee J)). In this matter, the native title party was represented by the Kimberley Land Council (‘the KLC’) the designated Native Title Representative Body under the Act for the area of the claim which has special responsibility for representing claimants in relation to native title determination proceedings and associated future acts. The KLC and its legal representatives would be fully aware of the need to comply with Tribunal directions to enable contentions and evidence to support the objection application to be placed before the Tribunal in a timely manner. The native title party applied for two extensions of time which were granted by the Tribunal, with the consent of the Government party and grantee party. No satisfactory explanation has been offered for the failure to comply. The native title party’s representative failed to attend the listing hearing on 12 August 2005.

8. Taking all these factors into account, I 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.

Decision

1. The objection application WO05/5 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
23 August 2005