Coalpac Pty Ltd/State of New South Wales/Gundungurra Tribal Council Aboriginal Corporation #6 (NC97/7), Wiray-dyuraa Maying-gu (NC11/3), Warrabinga-Wiradjuri People (NC11/4)/State of New South Wales - [2012] NNTTA 117

NATIONAL NATIVE TITLE TRIBUNAL

Coalpac Pty Ltd/State of New South Wales/Gundungurra Tribal Council Aboriginal Corporation #6 (NC97/7), Wiray-dyuraa Maying-gu (NC11/3), Warrabinga-Wiradjuri People (NC11/4)/State of New South Wales, [2012] NNTTA 117 (12 November 2012)

Application No: NF12/1

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into a future act determination application

Coalpac Pty Ltd (Applicant/grantee party)

- and -

Gundungurra Tribal Council Aboriginal Corporation #6 (First native title party)

Wiray-dyuraa Maying-gu (Second native title party)

Warrabinga-Wiradjuri People (Third native title party)

- and -

The State of New South Wales (Government party)

DECISION ON APPLICATION TO AMEND DIRECTIONS

Tribunal:  President Graeme Neate
Place:  Brisbane
Date of decision:  12 November 2012

Hearing date: 12 November 2012

Representatives:

Grantee party: Ms Georgia Denisenko, Just Outcomes
First native title party: Mr Eddy Neumann, Eddy Neumann Lawyers

Second native title party:         Mr Philip Teitzel, Teitzel & Partners
Third native title party:           No appearance
Government party:                  Mr James Herrington, Crown Solicitor’s Office

Catchwords: Native title – future act – application for determination – directions set – request to amend directions – factors to be taken into account – amendment made
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 35, 36, 36A, 38, 39, 109, 142, 151, 154, 162, 164, 178
Mining Act 1992 (NSW)

Cases:McLennan on behalf of the Jangga People v Queensland [2009] FCA 236
Ned Cheedy and Others on behalf of the Yindjibarndi People #1/FMG Pilbara Pty Ltd/Western Australia, [2011] NNTTA 30 (1 March 2011)
Parker v Western Australia (2008) 167 FCR 340, 245 ALR 436
Puutu Kunti Kurrama of Pinikura People; Puutu Kunti Kurrama & Pinikura People #2/Magnesium Resources Pty Ltd; Anthony Warren Slater/Western Australia [2011] NNTTA 2 (31 January 2011) Deputy President John Sosso
Western Australia v Thomas (1996) 133 FLR 124
Western Desert Lands Aboriginal Corporation v Western Australia (2009) 232 FLR 169
Western Australia/Judy Hughes and Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of the Gnulli/Rough Range Oil Pty Ltd [2004] NNTTA 108 (1 December 2004) Hon CJ Sumner

REASONS FOR DECISION

Issue

The issue before the National Native Title Tribunal (the Tribunal) is whether to further amend Amended Directions 6 to 11 made in relation to this matter on 2 October 2012. The request for the amendment was made by the legal representative of the Second native title party, Mr Teitzel, in an email message to the Tribunal dated 7 November 2012.

Background

The background to Mr Teitzel’s application can be summarised briefly.
On 4 March 2011, the State of New South Wales (the Government party) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act):
(a)of its intention to grant Mining Lease 393 to Coalpac Pty Limited (the Grantee party) pursuant to the Mining Act 1992 (NSW)
(b)of its intention to grant Mining Lease 392 to Lithgow Coal Company Pty Limited (which company was purchased by the Grantee party in 2008), and
(c)apparently, that the Minister for Primary Industries would give consent to the Grantee party to conduct prospecting activities on Exploration Licence 7517.
In accordance with s 29(5) of the Act, 24 March 2011 was specified as the notification day in relation to these proposed future acts.
The Grantee party was not able to obtain the agreement of the persons who are the applicant for the Wiray-dyuraa Maying-gu native title claim group’s native title claim (the Second native title party) to the doing of the future acts.
On 6 June 2012, the Grantee party lodged with the Tribunal a future act determination application under s 35 of the Act.
A preliminary conference was convened by the Tribunal in relation to the future act determination application on 5 July 2012. Directions were made by the Tribunal on 5 July 2012, and were varied subsequently on 2 August, 26 September and 2 October 2012.
The Tribunal is currently considering the relevant parties’ contentions and evidence in relation to whether the Grantee party negotiated in good faith with the Second native title party as required by s 31(1)(b) of the Act and hence whether the Tribunal has power to make a future act determination in relation to the proposed future acts.
While that process continues, specified parties were directed to provide contentions and evidence as to whether, assuming the Tribunal has power, the Tribunal should make a determination that the future acts must not be done or may be done, with or without conditions to be complied with by any of the parties.
Direction 5 required the Grantee party and the Government party to provide their contentions and evidence on or before 12 October 2012. The Grantee party and the Government party complied with that direction.
Direction 6 required the Second native title party to provide their contentions and evidence on or before Wednesday 31 October 2012. The Second native title party has not complied with Direction 6.
On Monday 5 November 2012, Ms Nicole Maher, a regional coordinator with the Tribunal, contacted Mr Teitzel by telephone, and on 5 November 2012 sent the following email message to the representatives of all of the parties:
Dear parties
Please be advised that the Tribunal is seeking information in relation to the Wiray-dyuraa Maying-gu native title party’s compliance with Order 6 of the Amended Directions made by President Neate on 2 October 2012. Consequently the 7 November 2012 date for the listing hearing (Order 9) will be vacated and the Tribunal will advise parties of an alternative date as soon as possible.
On Wednesday 7 November 2012, Mr Teitzel sent an email to the Tribunal.
We refer to your email below and your telephone conversations with the writer today in respect of NF12/1 Coalpac Pty Ltd (“Coalpac”).
We confirm our earlier verbal advices that we are the solicitors for the Barngarla native title claimants and that the Barngarla native title claim is proceeding to trial on 19th November 2012. The hearing of that trial will continue until 21st December 2012 with a reconvening of the Federal Court in this matter to hear expert evidence in late January 2013 and February 2013.
In these circumstances, I am unable to make submissions or participate further in the Coalpac matter, however copies of all documentation in this matter should be provided to our office.
It was unclear what was meant by the final sentence of that message, and the Tribunal sent an email to Mr Teitzel which included the following request:
In relation to the last sentence of your email, please clarify whether you mean that you are ‘unable to make submissions or participate further in the Coalpac matter’:
·at all; or
·within the timeframes set by the Tribunal’s directions.
In his email in reply on 7 November 2012, Mr Teitzel wrote
We apologise for any ambiguity in our earlier email advice and confirm that we are unable to make submissions or participate further in the Coalpac matter within the timeframes set by the Tribunal’s directions due to our involvement as the solicitors on the record in the trial of the Barngarla native title claim. Although we are aware and mindful of the six (6) month time limitation in the Coalpac matter, we will not be in a position to make submissions in compliance with the current directions of President Neate until the fourth week in February 2013.
We therefore seek a variation of Order 6 of the Amended Directions made by President Neate on 2 October 2012 to late February 2013 and therefore a consequential variation of orders 7 to 11 of those Amended Directions.
We apologise for any inconvenience caused by our inability to comply with the Amended Directions of 2 October 2012 which has been caused by circumstances beyond our control.
The email messages from Mr Teitzel on 7 November 2012 were the first written communications to the Tribunal to indicate that the Second native title party would not be complying with Direction 6 and that some variation of Direction 6 would be sought.
The substantive contents of the two emails from Mr Teitzel were conveyed to the representatives of all the parties to these proceedings on 7 November 2012 and a directions hearing was listed for 12 November 2012.
At that directions hearing, Mr Teitzel outlined the extensive amount of work he has had to undertake in relation to the preparation of the Barngarla native title claim for the hearing to commence on Monday 19 November 2012. He stated that he had hoped that the case might settle, and that there might have been a consent determination. However, at various stages along the way it became apparent that would not occur. Most recently, a conference of experts on Thursday and Friday last week, 8 and 9 November 2012, had not resolved the outstanding issues. Consequently, a full trial would be necessary. Due to preparation for that hearing, he had not had an opportunity to prepare for this future act determination application matter, in particular to do the work required to comply with Direction 6.
When asked for more specific information relevant to the exercise of the Tribunal’s discretion in relation to his application, Mr Teitzel advised the Tribunal that, in relation to possible compliance with Direction 6:
(a)he had gathered materials from the Second native title party and the other parties
(b)he estimated that it would take up to eight days of work to assess and analyse the materials, write up the contentions and check the document or documents
(c)if he worked on this matter during the judicial vacation in early 2013 (when the hearing of the Barngarla native title claim would not be occurring), he might be able to comply with Direction 6 by late January 2013 or early February 2013.
As noted above, Mr Teitzel had sought a variation of Amended Direction 6 made on 2 October 2012 ‘to late February 2013’ and therefore a consequential variation of those Amended Directions 7 to 11. By inference, the effect of his advice at the directions hearing would be to bring forward the proposed date for a varied Direction 6 to early February 2013, rather than the fourth week in February 2013 referred to in Mr Teitzel’s email of 7 November 2012.
Mr Teitzel said that he had attempted to engage counsel to assist with the matter but had been unsuccessful in obtaining the services of counsel. Given that his clients have no funding, he would consider attempting to obtain assistance from a firm of lawyers who offer native title advice on a pro bono basis.
Mr Teitzel also stated that his clients are aware that Direction 6 has not been complied with, and he has advised them of the potential implications for them of not complying with it.
Mr Teitzel advised that he holds instructions from his clients to submit that the proposed future acts may be done subject to specified conditions, and that they agree to the determination being made on the papers.
If Mr Teitzel’s application were to succeed, there would be no further requirement for statements, contentions or evidence to be received from the Second native title party before early February 2013. The nature and extent of any such evidence, or the type of submissions that would be made, have not been specified. However, it would appear that there would be submissions to the effect that:
(a)the Tribunal should determine that the future acts may be done subject to specified conditions to be complied with by any of the parties, and
(b)the determination be made on the papers.
Consequently, it is not possible to state with any certainty, how long it would take for the Tribunal to consider that evidence and contentions, as well as the material already provided to it by the Grantee party and the Government party.
Mr Teitzel’s application falls to be considered in light of the sections of the Act that govern future act determination proceedings, and the factors said to be in favour of or against acceding to the application.

Statutory context

The current future act determination application is to be dealt with by the Tribunal in accordance with the scheme of the Act. The key provisions can be summarised briefly.
Section 142 of the Act states:
Subject to subsection 151(2) and sections 154, 154A and 155, the Tribunal must ensure that every party is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in making a determination in the inquiry and to make submissions in relation to those documents.
Section 151 provides that, for the purposes of an inquiry, the Tribunal may hold hearings. A hearing is not mandated by the Act. The Tribunal may make a determination in relation to a right to negotiate application by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal. However, the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties.
For present purposes, the other relevant sections of the Act pertaining to the conduct of this future act determination inquiry include ss 154, 162 and 164. In addition to the provision that hearings must be held in public except in special circumstances (s 154), the Act provides that:
(a)after holding an inquiry in relation to a right to negotiate application, the Tribunal must make a determination about the matters covered by the inquiry (s 162(1))
(b)the Tribunal must state in the determination any findings of fact upon which it is based (s 162(2)), and
(c)the determination must be in writing and be given to each of the parties (s 164(1)).
The effect of s 162(2) was considered by a Full Court of the Federal Court of Australia in Parker v Western Australia (2008) 167 FCR 340, 245 ALR 436. The clear import of those provisions is that, if it is necessary to rely on evidence to make findings of fact, the Tribunal should set out the facts on which those findings are made.
The Tribunal has long accepted that its task involves weighing the various criteria in s 39(1) by giving proper consideration to them on the basis of evidence. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interests of the Aboriginal people concerned. The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them. Indeed it is apparent that the Tribunal is required to take into account quite diverse and what may sometimes be conflicting interests in coming to its determination. The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence (see Western Australia v Thomas (1996) 133 FLR 124 at 165–166; Western Desert Lands Aboriginal Corporation v Western Australia (2009) 232 FLR 169 at [37]).
The Tribunal has taken the approach that there is no burden or onus of proof on a party to satisfy the Tribunal that the proposed future act should or should not be done. The Tribunal is not bound by the rules of evidence (s 109(3)) and adopts a commonsense approach to evidence. So, for example, where facts may be peculiarly within the knowledge of a party to an issue that party might be expected to produce evidence as to those facts. That does not mean that the party bears an evidential onus of proof. The parties have an evidentiary choice to lead or not lead evidence on a particular issue. It is for the parties to present all the evidence readily available to them and for the Tribunal to examine the available material. A party’s failure to produce evidence as to facts peculiarly within its knowledge may lead to an unfavourable inference being drawn when the Tribunal, as an administrative body, applies its commonsense approach to the evidence. In other words, if parties fail to produce such evidence, they cannot complain if the Tribunal gives little or no weight to their contentions. Although the Tribunal can, in appropriate cases, make its own inquiries, it is not under a general obligation to do so. As a matter of general practice, where (as in this case) parties are represented before the Tribunal, it would not do so (see Western Australia v Thomas (1996) 133 FLR 124 at 155–163; also Western Australia/Judy Hughes and Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of the Gnulli/Rough Range Oil Pty Ltd, [2004] NNTTA 108 (1 December 2004) Hon CJ Sumner at [18], [19] and [49]).
I note, for completeness, that s 178 provides that, if an appeal is made to the Federal Court from a determination of the Tribunal relating to a right to negotiate application, the Tribunal must send to the Court all documents that were before the Tribunal in relation to the inquiry.
A temporal framework for the scheme is set out in s 36, which requires the Tribunal to take all reasonable steps to make a determination ‘as soon as practicable’. Subsection 36(3) provides that if the Tribunal does not make a determination within six months after the lodging of a s 35 application, it must advise the Commonwealth Attorney-General in writing of the reason for the not doing so and an estimate of when a determination is likely to be made. Further, s 36A empowers the Commonwealth Attorney-General in specified circumstances to intervene and take over responsibility for making a determination. In short, ss 36 and 36A place a clear obligation on the Tribunal to act expeditiously when conducting a s 38 inquiry, and contemplate that if a decision is not made within a reasonable time, the Commonwealth Attorney-General is empowered to intervene and ensure that a decision is made in a timely way.
The Act also prescribes the manner in which the Tribunal must operate. Subsection 109(1) provides that the Tribunal ‘must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way’.

Factors in support of the Second native title party’s application

The factors in support of the application for amendments to Directions 6 to 11 can be expressed briefly:
(a)The Second native title party is entitled to make submissions and provide evidence to the Tribunal as to whether the proposed future acts must not be done or may be done with or without conditions.
(b)The Second native title party’s legal representative has been unable to comply with Direction 6 to date due to commitments in relation to other, unrelated proceedings in the Federal Court
(c)The failure to allow the Second native title party sufficient time to make submissions and provide evidence because of their legal representative’s failure to comply with Direction 6 could be seen as putting them at a disadvantage in relation to other parties to these proceedings. As Rares J stated in McLennan on behalf of the Jangga People vQueensland [2009] FCA 236:
The role of the Court is not to punish litigants for failing to comply with orders by denying them the right to have their case heard and determined on the merits in situations where no substantive prejudice is suffered by their opponents: at [15]

Factors against acceding to the application made by the Second native title party

The factors against making the variation sought by the Second native title party can be summarised as follows:
(a)The Act provides that a future act determination application should be the subject of a determination as soon as practicable after the application is made to the Tribunal and, by implication at least, within six months after that date
(b)The Second native title party’s representative did not comply with Direction 6 and did not give the Tribunal notice of his inability to comply either before or on the due date and, indeed, did not communicate with the Tribunal at all until seven days after the date for compliance, and then only in response to telephone and email contact by the Tribunal
(c)The delay that would arise as a consequence of varying Directions 6 to 11 could have an adverse effect on the interests of other parties to these proceedings. In a letter to the Tribunal dated 8 November 2012 and copied to the representatives of other parties, the Grantee party submits that any extension of the current time frame for determination of this matter beyond 6 December 2012:
would be highly prejudicial to the Grantee party and therefore contrary to the public interest because it will effectively prohibit the granting of Mining Lease Applications 392 & 393 applied for in conjunction with the Part 3A approval sought by Coalpac for its contemporary Project Approval to consolidate and extend the existing coal mining operations under a single planning approval. This Project will allow for the continuation of coal mining operations for a further 21 years of an otherwise depleted resource. Failure to obtain the requisite mining leases will delay the commencement of mining, resulting in extensive staff redundancies and an inability to fulfil contractual obligations to the adjacent Mt Piper Power station, ultimately adversely impacting NSW electricity supply. See also paragraphs [62-67] of the Grantee Party’s s.39 contentions dated 12 October 2012.
I note that submission without necessarily accepting it. I note also that at the directions hearing, Ms Denisenko contended that delay of the type sought by Mr Teitzel would be ‘calamitous’ for her client, and Mr Follington made statements consistent with the written submission.
(d)The Tribunal has limited resources, and such a delay could have adverse implications on the Tribunal’s capacity to manage future act matters generally and this matter in particular. As Deputy President Sosso stated in relation to another application for an adjournment in relation to future act proceedings:
[W]hen considering applications for adjournments or extensions of time for compliance, the Tribunal is entitled to factor into its deliberations the overall impact on the Tribunal’s lists and the timely and effective disposition of matters. The Tribunal has to deal with large numbers of expedited procedure objection applications and ‘right to negotiate’ arbitrations every year. This workload is particularly heavy in Western Australia and Queensland. The Tribunal has relatively few Members and staff to carry out not only these functions, but also requests for future act mediations and s.150 conferences. In an environment of declining staff numbers, Members and resources, it is imperative that the Tribunal manage the future act inquiry processes in a timely, certain and efficient manner. Such management is made that much more difficult when parties constantly seek amendments to directions to extend time for compliance, either on the basis of their stated lack of resources or their desire to present the best possible case. (Puutu Kunti Kurrama of Pinikura People; Puutu Kunti Kurrama & Pinikura People #2/Magnesium Resources Pty Ltd; Anthony Warren Slater/Western Australia, [2011] NNTTA 2 (31 January 2011) at [22]; see also Ned Cheedy and Others on behalf of Yindjibarndi People #1/FMG Pilbara Pty Ltd/Western Australia, [2011] NNTTA 30 (1 March 2011))
(e)My term as President of the Tribunal expires on 31 March 2013, and it is necessary that there be sufficient time for me to consider the evidence and submissions and write complete reasons for determination in this matter before that date.

Consideration

As noted earlier, the Act is drafted with the clear aim of the Tribunal disposing of future act determination applications in a timely way. Where directions are set, with the concurrence of the parties, it is in the interests of justice that those directions not be subjected to repeated amendments extending time for compliance which in turn, result in the Tribunal not meeting the timelines referred to in s 36.
Mr Teitzel has a responsibility to serve his clients competently and diligently, and a duty to comply with the directions made by the Tribunal in relation to his clients.
At the directions hearing, Mr Teitzel confirmed that he took no steps to alert the Tribunal in advance of the due date that he could or would not be complying with Direction 6. Indeed, it was only at the prompting of the Tribunal, and a week after the due date, that he advised the Tribunal that he was unable to make submissions or participate further in these proceedings and sought to have Directions 6 to 11 varied.
I accept that his other commitments in relation to the native title claim proceedings before the Federal Court have made it difficult for him to comply with the Tribunal’s directions in relation to these future act proceedings. However, Mr Teitzel’s commitments in relation to the Barngarla matter were known to him when the Directions were varied on 2 October 2012. Hence, for him to say that his ‘inability to comply with the Amended Directions of 2 October 2012 ... has been caused by circumstances beyond our control’ when those circumstances were, it seems, known for some time is not a compelling ground for granting the adjournment sought by him. Rather, it suggests that he should either have taken steps to have this future act matter dealt with on behalf of his clients in another way or have applied to the Tribunal to have the Directions varied as soon as it became apparent that he could not comply with Direction 6. I accept that he has attempted to engage counsel for this purpose but has been unsuccessful to date. He has expressed a willingness to explore other options.
Arguably, s 142 of the Act has been complied with in the sense that the Tribunal has ensured that the Second native title party has been given a reasonable opportunity to:
(a)present its case
(b)inspect any documents to which the Tribunal proposes to have regard in making a determination in the inquiry, and
(c)make submissions in relation to those documents.
The fact that, to date, the Second native title party has not taken the opportunity to present its case, indeed has not complied with a Tribunal direction to do so, does not mean that the requirements of s 142 have not been satisfied, or that the Second native title party would be ‘punished’ if the Tribunal does not vary Directions 6 to 11 in the way sought by Mr Teitzel.
Consequently, lack of compliance with Direction 6 to date need not prevent the Tribunal from performing its functions in the way mandated by the Native Title Act.
As indicated at the directions hearing, despite the absence of contentions and evidence from the Second native title party in accordance with Direction 6, the Tribunal will:
(a)proceed to decide whether it has power to make a determination in relation to the application made by the Grantee party on 6 June 2012, and then
(b)if the Tribunal decides that it has power to make the determination, proceed to make that determination on the papers by reference to the contentions and evidence before it.
Nonetheless, it is appropriate in the circumstances to see whether the Second native title party can be assisted to comply with Direction 6 so that their evidence and contentions are taken into account if a determination is made by the Tribunal under s 38.

Conclusion

In light of the circumstances referred to in these reasons and the statutory context in which the Tribunal must deal with the present future act determination application, the following directions are made:
Amended Directions 6, 8, 9 and 10 in these proceedings made on 2 October 2012 are varied by deleting the specified dates and inserting the words ‘a date to be fixed by the Tribunal’.
Mr Teitzel is to provide a copy of these reasons for decision to his clients as soon as practicable and explain to his clients the consequences of the failure to comply with Direction 6.
Mr Teitzel is to seek instructions from his clients about whether another legal representative should be engaged, either in addition to or in place of Teitzel & Partners, to ensure compliance with Direction 6 as soon as practicable.
By close of business on Friday 16 November 2012, Mr Teitzel is to advise the Tribunal and the representatives of the other parties in writing of the actions he has taken in relation to these Directions 2 and 3, and to provide a timetable in relation to the expected compliance by the Second native title party with Direction 6.
Liberty is given to apply to vary these directions or for a re-listing of this hearing.

Graeme Neate

President