Charlie Lapthorne and Others on behalf of the Thudgari People; Albert Little and Others on behalf of Badimia; Evelyn Gilla & Others on behalf of Yugunga-Nya; Limpet Giggles and Others on behalf of Gobawarrah...

[2009] NNTTA 79

NATIONAL NATIVE TITLE TRIBUNAL

Charlie Lapthorne and Others on behalf of the Thudgari People; Albert Little and Others on behalf of Badimia; Evelyn Gilla & Others on behalf of Yugunga-Nya; Limpet Giggles and Others on behalf of Gobawarrah Minduarra Yinhawanga; Ronald Crowe and Others on behalf of Gnulli/Western Australia/Aurora Resources Pty Ltd; Dawn Metals Pty Ltd; Desert Energy Ltd, [2009] NNTTA 79 (30 July 2009)

Application Nos:      WO07/332, WO07/333, WO07/334, WO07/337, WO07/340, WO07/572, WO07/793, WO07/794, WO07/795, WO07/995, WO07/1101, WO08/44, WO08/169, WO08/269, WO08/499, WO08/653, WO08/655, WO08/1203

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

-and-

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

Applications are listed in the attached schedule

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            23 July 2009
Date of reasons:              30 July 2009

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

Legislation:Native Title Act1993 (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      Mr Vaughan Lane, Yamatji Communications

native title parties:            Mr Wayne Lapthorne, Mimboon Mineral Resources Pty Ltd
  (for Thudgari People)

Ms Samantha Rosenfeld, Yamatji Marlpa Aboriginal Corporation

(for Badimia People)

Ms Alissa Lovering, Yamatji Marlpa Aboriginal Corporation
  (for Yugunga-Nya and Gnulli People)

Ms Lea Notte, Yamatji Marlpa Aboriginal Corporation

(for Gobawarrah Minduarra Yinhawanga)

Representative of the

grantee party:  Mr Shannon McMahon, McMahon Mining Title Services Pty Ltd

Representatives of the      Mr Greg Abbott, Department of Mines and Petroleum

Government party:           Ms Claire Malavaux, Department of Mines and Petroleum

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

[1] On the dates specified in the attached schedule, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘NTA’) of its intention to grant certain exploration licences to the grantee parties specified therein and included in the notices a statement that it considered that the grants attracted the expedited procedure.

[2]        On the dates specified in the attached schedule, the native title parties made expedited procedure objection applications to the Tribunal.

Relevant facts

[3] The Tribunal made directions in relation to each of the objections specified in the attached schedule requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The directions contain a statement that an objection may be dismissed pursuant to s 148(b) of the NTA if the objector fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal.

[4]        The first preliminary conference for the oldest objections was held on the 19 June 2007 at which time the Tribunal was advised that parties wished to negotiate an agreement to resolve the objection applications. The Tribunal was subsequently advised that all objections as specified in the attached schedule would be dealt with in the same way, and numerous conferences were convened thereafter at which parties continued to advise that they were engaged in negotiations towards a regional agreement encompassing each of the affected native title parties. A number of extensions to the time for compliance with directions were made to accommodate these negotiations, culminating in the vacation of directions on 4 June 2008 on the basis of advice that an agreement was possible within the following six months.  The Tribunal allowed considerable latitude to parties on the basis that there was goodwill between parties and a plan for negotiating a regional agreement was apparent.

[5] At a status conference held on 18 December 2008, it became evident that the regional approach to negotiating an agreement had broken down. The Tribunal offered to provide assistance in resolving matters pertinent to the inquiry by way of a conference convened pursuant to s 150 of the NTA but after consideration by the grantee parties this offer was rejected. Thereafter, the representative for the grantee parties indicated that they were willing to negotiate an agreement with the Wajarri Yamatji native title party only and that the Regional Standard Heritage Agreement (‘RSHA’) was to be offered to all other affected native title parties. Accordingly I reinstated directions on 18 December 2008 allowing staggered timeframes for compliance by each native title party, taking into account a proposed schedule of working group meetings at which instructions from each native title party could be sought. These directions were further amended on 3 April 2009 to allow additional opportunities for native title parties’ representatives to seek instructions or gather evidence for an inquiry if required.

[6] On 16 June 2009 a request for assistance under s 150 of the NTA was received from the representative for the Thudgari native title party. Similar requests were subsequently received from representatives of the Badimia, Gnulli, Gobawarrah Minduarra Yinhawanga and Yugunga-Nya native title parties. The grantee parties opposed these requests on the basis that there was nothing further to negotiate and I agreed that s 150 assistance after over two years of attempted negotiations was unlikely to be productive in resolving matters pertinent to the inquiry. Further, parties were advised on 3 April 2009 that directions as amended would be final.

[7]        The Government party has complied with directions but neither contentions, evidence, nor submissions in relation to compliance had been received by the native title parties by the due date.

[8] On 23 July 2009 at a status conference Mr Greg Abbott (Department of Mines & Petroleum) for the Government party and Mr Shannon McMahon for the grantee parties sought dismissal of the objections pursuant to s 148(b) of the NTA. Mr McMahon confirmed that the grantee parties were only prepared to enter into the RSHA in relation to the proposed licences. Mr Abbott confirmed that the Government party would impose as a condition on the grant of the tenements a requirement that the grantee parties must execute a RSHA within 30 days if they were requested to do so by the native title parties within 90 days of the grant. Ms Samantha Rosenfeld of Yamatji Marlpa Aboriginal Corporation (the native title representative body) (‘Yamatji’), for the Gnulli, Yugunya-Nya, Gobawarrah Minduarra Yinhawanga and Badimia native title parties advised that each group was now prepared to accept the RSHA in these cases.

[9]        Mr Wayne Lapthorne and Mr Vaughan Lane for Thudgari advised that they had only been recently instructed by the Thudgari native title party and had initiated contact with the grantee parties but received no satisfactory response to date.  Messrs Lapthorne and Lane said that they required more time to negotiate an agreement in relation to the proposed licences.

[10]      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 these matters. 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)).

[11]      These matters did not proceed as expeditiously as is desirable because of the desire of the grantee parties to enter into a regional agreement to cover these exploration licences and future ones.  Extensions of time for compliance were granted by the Tribunal, with the consent of the Government party and grantee parties but by December 2008 the parties were made aware that the matters should proceed to inquiry if no agreement could be reached.  Adequate time has now been allowed for the native title parties to comply even taking into account any difficulties with the lack of resources available to their representatives.  I observe that in future the Tribunal may be less inclined to agree to delays of this extent in the expedited procedure.  It may be that where there are large numbers of tenements and multiple native title parties there are significant practical impediments to seeking a regional agreement.

[12]      In the case of the Thudgari native title party, the representation for this group changed in late June 2009 and the new Thudgari representative has not had an extended period of time to consider these matters.  Nonetheless, the objections are within the expedited procedure process and until the recent change in representation Yamatji had been representing them.  Negotiations have been ongoing since at least June 2007 and adequate time has been allowed to pursue the possibility of agreement.  I do not consider the late change of representation to be sufficient reason to defer dismissal of the objections, particularly as the grantee parties have made it clear that no agreement other than the RSHA is acceptable to them.  Although the Thudgari native title party did not advise that they were now prepared to enter into the RSHA, they will have the opportunity to do so by virtue of the Government party’s proposed condition.  In none of the matters the subject of this decision has a satisfactory explanation been offered for the native title parties’ failure to comply. 

Conclusion

[13]      For each of these matters the native title party has failed to proceed with the objection in a timely manner and to comply with directions of the Tribunal despite being given an adequate opportunity to do so and the case for dismissal has been made out.

Linked objections not dismissed

[14]      Proposed licences E08/1732, E08/1778 and E08/1838 are also overlapped by and the subject of expedited procedure objection applications WO07/351 (E08/1732), WO07/974 (E08/1778) and WO08/682 (E08/1838) made by the Jurruru registered native title claimants (WC00/8 – registered from 1 March 2001).  These objections are still before the Tribunal and these tenements cannot proceed to grant at this time.

Decision

[15] The expedited procedure objection applications specified in the attached schedule are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
30 July 2009

SCHEDULE - DECISION TO DISMISS OBJECTION APPLICATIONS

NOTE:  Those tenements italicised are still before the Tribunal and cannot proceed to grant at this time.

Tenement No.	Date of Govt. Party Notification (s29 Notice)	Objection Application No.	Date Objection Application Lodged	Grantee Party/ies	Native Title Party & Linked Claimant Objection No.	Date Directions Made	Dismissal Date
E08/1717	17/01/2007	WO07/332	17/05/2007	Aurora Resources Pty Ltd	Charlie Lapthorne and Others on behalf of the Thudgari People – WC97/95	03/04/2009	23/07/2009
E08/1718	17/01/2007	WO07/333	17/05/2007	Aurora Resources Pty Ltd	Charlie Lapthorne and Others on behalf of the Thudgari People – WC97/95	03/04/2009	23/07/2009
E08/1725	17/01/2007	WO07/334	17/05/2007	Aurora Resources Pty Ltd	Charlie Lapthorne and Others on behalf of the Thudgari People – WC97/95	03/04/2009	23/07/2009
E08/1726	17/01/2007	WO07/337	17/05/2007	Aurora Resources Pty Ltd	Ronald Crowe and Others on behalf of Gnulli – WC97/28	03/04/2009	23/07/2009
E08/1732	14/02/2007	WO07/340	17/05/2007	Aurora Resources Pty Ltd	Charlie Lapthorne and Others on behalf of the Thudgari People – WC97/95	03/04/2009	23/07/2009
E08/1755	14/03/2007	WO07/572	12/07/2007	Aurora Resources Pty Ltd	Charlie Lapthorne and Others on behalf of the Thudgari People – WC97/95	03/04/2009	23/07/2009
E59/1290	25/04/2007	WO07/793	24/08/2007	Aurora Resources Pty Ltd	Albert Little and Others on behalf of Badimia – WC96/98	03/04/2009	23/07/2009
E59/1291	25/04/2007	WO07/794	24/08/2007	Aurora Resources Pty Ltd	Albert Little and Others on behalf of Badimia – WC96/98	03/04/2009	23/07/2009
E59/1284	25/04/2007	WO07/795	24/08/2007	Aurora Resources Pty Ltd	Albert Little and Others on behalf of Badimia – WC96/98	03/04/2009	23/07/2009
E08/1778	23/05/2007	WO07/995	24/09/2007	Aurora Resources Pty Ltd	Limpet Giggles and Others on behalf of Gobawarrah Minduarra Yinhawanga – (WC97/43)	03/04/2009	23/07/2009
E59/1292	20/06/2007	WO07/1101	19/10/2007	Aurora Resources Pty Ltd	Albert Little and Others on behalf of Badimia – WC96/98	03/04/2009	23/07/2009
E57/715	10/10/2007	WO08/44	21/01/2008	Dawn Metals Limited	Evelyn Gilla & Others on behalf of Yugunga-Nya – WC99/46	03/04/2009	23/07/2009
E58/354	21/11/2007	WO08/169	7/02/2008	Dawn Metals Pty Ltd	Evelyn Gilla & Others on behalf of Yugunga-Nya – WC99/46	03/04/2009	23/07/2009
E58/354	21/11/2007	WO08/269	29/02/2008	Dawn Metals Pty Ltd	Albert Little and Others on behalf of Badimia Native Title Claim – WC96/98	03/04/2009	23/07/2009
E08/1838	23/04/2008	WO08/499	20/06/2008	Aurora Resources Pty Ltd	Limpet Giggles and Others on behalf of Gobawarrah Minduarra Yinhawanga – (WC97/43)	03/04/2009	23/07/2009
E51/1264	23/04/2008	WO08/653	15/08/2008	Desert Energy Ltd	Evelyn Gilla & Others on behalf of Yugunga-Nya – WC99/46	03/04/2009	23/07/2009
E53/1370	23/04/2008	WO08/655	15/08/2008	Desert Energy Ltd	Evelyn Gilla & Others on behalf of Yugunga-Nya – WC99/46	03/04/2009	23/07/2009
E58/368	10/09/2008	WO08/1203	23/12/2008	Desert Energy Ltd	Albert Little and Others on behalf of Badimia – WC96/98	03/04/2009	23/07/2009