Cyril Barnes on behalf of Wongatha/Western Australia/Aurora Gold (WA) Pty Ltd

[2004] NNTTA 110

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Barnes on behalf of Wongatha/Western Australia/Aurora Gold (WA) Pty Ltd, [2004] NNTTA 110 (14 December 2004)

Application No:        WO03/793

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

- and -

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

Cyril Barnes on behalf of Wongatha – WC99/1 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Aurora Gold (WA) Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            10 December 2004
Date of reasons:              14 December 2004

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), 237

Cases:Leonne Velickovic on behalf of Widji People/Western Australia/Allarrow Pty Ltd; Coniston Pty Ltd, NNTT WO03/668 & WO03/764, [2004] NNTTA 43 (18 June 2004), Hon C J Sumner

Cyril Barnes on behalf of Wongatha/Western Australia/Kookynie Resources NL, NNTT WO03/495, [2004] NNTTA 47 (21 June 2004), Hon C J Sumner

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

Representatives of the     Mr Dion Meredith, North East Independent Body

native title party:            Mr Barrie Machin, Tamora Pty Ltd

Representative of the

grantee party:                 Mr Brenton Parry, Western Tenement Services

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 4 June 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E39/979 to Aurora Gold (WA) Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. Cyril Barnes on behalf of the Wongatha claimants (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to E39/979 on 3 October 2003.

Relevant Facts

1. The area, location, and percentage to which the grantee party’s exploration licence is overlapped by the registered native title claim is as follows:

   ·     E39/979 – 166.86km², 155km south of Laverton, 100% overlap.

2. The Tribunal initially made Directions for all parties to produce contentions and evidence for the conduct of the inquiry in relation to the expedited procedure objection application on 22 October 2003. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit by 2 February 2004. 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.

3. At the request of the parties, amendments to Directions were made on 24 February, 29 March, 25 June, and 25 August 2004 to allow further time for the parties to negotiate and because of difficulties in obtaining the grantee party’s instructions.  A final amendment to Directions was made, by consent of the parties, on 24 September 2004 that re-set native title party compliance to 29 October 2004.

4. The Tribunal convened Listing Hearings on 18 August and 11 September 2004, at which the grantee party representative advised it would prefer to proceed to inquiry following the breakdown of negotiations.  As the native title party representatives, Mr Dion Meredith and Mr Barrie Machin, were unable to attend either hearing, a further adjourned Listing Hearing was convened on 25 November 2004, at which the grantee party representative restated the request that the matter proceed to inquiry. At this hearing the issue of compliance with Directions, including the possible consequences of non-compliance, was discussed in detail. However, the native title party representatives could not give any commitment that a statement of contentions or supporting evidence would be submitted as required.

5. The Government party complied with Directions initially set for this matter on 27 January 2004.  No statement of contentions or supporting evidence was submitted on behalf of the grantee party. 

6. On 6 and 24 September 2004, the Tribunal wrote to the native title party and all other parties pointing out that the consequences of non-compliance with directions may be dismissal of the objection under s 148(b) of the Act. No response was received by the Tribunal from the native title party addressing the issues raised in either pieces of correspondence.

7. At the adjourned Listing Hearing I convened on 10 December, which the native title party again did not attend, the Government party submitted that the applications should be dismissed pursuant to s 148(b) of the Act on the grounds that the native title party has failed to comply with the Tribunal’s directions. The grantee party supported this submission.

8. Since May 2004, I have dismissed a number of objection matters where native title party compliance was an issue and where the Government and grantee parties requested dismissal of the objections (see for example, Leonne Velickovic on behalf of Widji People/Western Australia/Allarrow Pty Ltd; Coniston Pty Ltd, NNTT WO03/668 & WO03/764, [2004] NNTTA 43 (18 June 2004), Hon C J Sumner; Cyril Barnes on behalf of Wongatha/Western Australia/Kookynie Resources NL, NNTT WO03/495, [2004] NNTTA 47 (21 June 2004) Hon C J Sumner). In these matters I applied the principles enunciated by Member Sosso in Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at para [13]) on the use of the power to dismiss an objection application under s 148(b) of the Act for failure to comply with the Tribunal’s directions. One of the factors to be taken into account is the previous conduct of the objector, such as previous failures to comply with the Tribunal’s directions. The recent experience of the Tribunal is that there have been a number of matters where the Wongatha native title party failed to comply and I am entitled to have regard to this behaviour in deciding this matter.

9. In this matter 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 initial or amended Directions, having submitted no Statements of Contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.  I also note that on 25 November 2004 Mr Meredith and Mr Machin, on behalf of the native title party, acknowledged that compliance was overdue for this objection application, but still failed to comply.

10. The objection application was lodged on 3 October 2003, which is over 12 months ago. This matter has, therefore, been in the system for a considerable time and one would have expected some steps to have been taken by the native title party to provide an evidentiary basis for their objection within that time even taking into account that for some time they were attempting to negotiate an agreement with the grantee party from whom it was difficult to get a definitive answer. As far as I can ascertain nothing has been done to try to take even preliminary steps to collect relevant evidence to sustain this objection. This failure has occurred despite the fact that at least since 24 September 2004 the native title party has been aware that negotiations had broken down and that the matter would proceed to an inquiry. Although no representatives for the native title party attended the adjourned Listing Hearing on 10 December 2004, from previous matters Mr Meredith, Mr Machin and the Wongatha native title party have been placed on notice of the consequences of non-compliance and should be aware of evidence required under s 237 of the Native Title Act 1993 (Cth) if an objection is to be upheld but have failed to provide it.

Decision

1. Being satisfied that the applicant (native title party) failed within a reasonable time to proceed with its expedited procedure objection application and to comply with directions of the Tribunal, the objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
14 December 2004