Cyril Barnes on behalf of Wongatha/Western Australia/Kookynie Resources NL
[2004] NNTTA 47
•21 June 2004
NATIONAL NATIVE TITLE TRIBUNAL
Cyril Barnes on behalf of Wongatha/Western Australia/Kookynie Resources NL, [2004] NNTTA 47 (21 June 2004)
Application No: WO03/495
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-
Kookynie Resources NL (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date of dismissal: 11 June 2004
Date of reasons: 21 June 2004
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) s 148(b)
Representative of the Dr Barrie Machin, Tamora Pty Ltd
native title party: Mr Dion Meredith, North East Independent Body
Representative of the
grantee party: Mr Norman Mathew Longworth, Kookynie Resources NL
Representative of the
Government party Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On the 15 January 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences E30/251 and E30/252 (‘the proposed licences’) to Kookynie Resources NL (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 15 May 2003, the Tribunal received an expedited procedure objection application from Dr Barrie Machin, naming himself and Wongatha Claim WC99/1 as the objector and Fabian Tucker, Chairman of the North East Independent Body, as the address for service of the objector. The application was made on the prescribed Form 4, but contained inaccuracies regarding the identifying number of the proposed licences and was not lodged by a registered native title claimant.
On 19 June 2003, Cyril Barnes on behalf of Wongatha (‘the native title party’) made an amended expedited procedure objection application to the Tribunal. This amended application was accepted by me on 9 July 2004 notwithstanding further clerical errors in the identification number of the proposed licences.
Relevant Facts
E30/251 concerns an area of some 2.98 km² and is located 52 kilometres north-west of Menzies. E30/252 covers an area of 5.97 km² and is located 50 kilometres north-west of Menzies. The proposed licences are entirely covered by the registered claim of the native title party.
On 8 July 2003, the Tribunal made Directions for all parties to provide contentions and evidence for the conduct of the inquiry. The Direction in respect of the native title party was as follows:
‘(3)On or before 11 September 2003 the native title party shall provide the following to the Tribunal and each other party:
(a)a statement of contentions.
Statement of contentions to include:
· a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area; and
· a statement of the community or social activities of the native title party that it is contended is likely to be interfered with directly by the grant of the tenement.
(b)a copy of each document relevant to the Inquiry (including any affidavit to be relied on).
Documents claimed to be of a confidential nature are to be placed in a separate sealed envelope, marked “Confidential” and provided to the Tribunal with a list indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal; and
(c)a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.’
The Government party complied with Directions by 22 August 2003. On 11 September 2003 the Tribunal received correspondence from Dr Barrie Machin of Tamora Pty Ltd on behalf of the native title party entitled “Wongatha For contentions to be submitted by the 11th September”. The contentions apply to a number of objection matters, (including this one) and assert that “radical” disturbance to wildlife and vegetation, environment, flora and fauna, community activities of the Wongatha native title claimants and archaeological sites will occur from exploration. Mention is made of the possibility of more ethnographic sites being discovered “in a survey on the ground” and Dr Machin states “The company should carry out site surveys”. No documentary or affidavit evidence, nor indeed any other material is provided with this submission.
It should be apparent by now to those advising native title parties what is required by way of evidence to support an objection to the expedited procedure. The law has been explained by the Federal Court and Tribunal in a number of cases. An easy reference to the legal principles involved including the evidentiary requirements is contained in ‘Guide to future act decision made under the Commonwealth right to negotiate scheme as at 31 December 2003’ which is available from the Tribunal’s web site ( A perusal of the Tribunal’s determinations (also available on the web site) will also provide guidance on what evidence is required in particular cases on the matters raised by s 237 of the Act. Generalised contentions (without evidence) which are said to be applicable to all exploration licences irrespective of where they are located are of little assistance to the Tribunal. There needs to be evidence on whether there is likely to be direct interference with the community or social activities of the native title party, interference with sites of particular significance to them or major disturbance to land (s 237) in the locality of the proposed exploration or prospecting licence and caused by their grant.
During conferences and hearings held between July 2003 and March 2004 it was established that parties were attempting to negotiate an agreement. The possibility that the grantee party would withdraw their application for the proposed licences was also explored. However, on 4 March 2004 the Tribunal conducted a Hearing during which the representative for the grantee party advised its reluctance to execute the Wongatha alternative heritage agreement and stated that it would be relying on the contentions provided by the Government party in an Inquiry. In the presence of all parties it was decided that the matter would now proceed to Inquiry.
On 17 March 2004 correspondence from the Tribunal was forwarded to the representatives for the native title party and all other parties in the following terms:
‘On 11 September 2003 Tamora Pty Ltd (Dr Barrie Machin) provided a brief general statement of contentions on behalf of the native title party which were in the same terms as those filed in seven other objection matters. No documents or statements of evidence as specified in paragraphs 3(b) and (c) of the Directions have been provided.
On 4 March 2004 an adjourned Listing Hearing was conducted by me at which the parties were advised that the matter would be referred to a Member for inquiry.
Deputy President Sumner has now considered the file. On the material before him Deputy President Sumner is of the view that the native title party has not complied with the Tribunal’s directions and in any event there is no evidence before him to uphold the objection and make a determination that the expedited procedure is not attracted.
He has directed that you comply with the Tribunal’s directions made on 8 July 2003 by cob Thursday, 25 March 2004. Failure to do so will result in either dismissal of the objection under s 148(b) of the Native Title Act 1993 for failure to comply with a direction of the Tribunal, or a determination that the expedited procedure is attracted based on the lack of evidence to support the objection. The adjourned Listing Hearing has been set down for Friday 26 March 2004 at 8.30am.’
On 25 March 2004 the Tribunal received email correspondence from Dr Barrie Machin in the following terms:
‘In the matter of contentions.
Kookynie Resources NL E/30/251 and E30/252.
Kookynie Resources has not signed the NEIB (Wongatha heritage Agreement).
1. It is not possible to state definitively that there are no sites in the area until The Native Title Claimants do a survey. Aboriginal Informants must see the area they cannot do a survey through maps and coordinates. The DIA site register is not up to date. In nearly all these areas there are distributions of artefacts so archaeological material is disturbed.
Deputy President Sumner should direct Kookynie Resources to negotiate the agreement and carry out a survey. I enclose the alternative SHA.
2. It is the experience of the Wongatha that exploration can severely disturb the ground on a lease and disturb fauna to such an extent that hunting practices are interfered with and game is dispersed. Ancient hunting and gathering traditions are disturbed. It is also the case that trees get damaged through careless driving.’
Again no evidence was provided to accompany these assertions.
An adjourned Listing Hearing was held on 26 March 2004 at which time Directions were further amended to allow compliance for the Government party on or before 23 April 2004, and that of the native title party on or before 30 April 2004.
On 22 April 2004 the Tribunal received an amended statement of contentions from the State Solicitor’s Office on behalf of the Government party. No further submissions were received from the native title party.
On 4 May 2004 the Tribunal wrote once again to the native title party and all other parties in the following terms:
‘On 11 September 2003 Tamora Pty Ltd (Dr Barrie Machin) provided a brief general statement of contentions on behalf of the native title party in relation to WO03/495, which were in the same terms as those filed in seven other objection matters. No documents or statements of evidence as specified in paragraphs 3(b) and (c) of the Directions were provided.
On 26 March 2004 an adjourned Listing Hearing was conducted into these matters by Deputy President Sumner, during which fresh Directions were fixed after hearing all parties and with the concurrence of the native title party.
As at 4 May 2004 (by which time the native title party was due to comply with the directions), there has been no compliance by or on behalf of the native title party in these matters. As pointed out in the Directions, under Section 148 (b) of the Native Title Act 1993, where a native title party fails to comply with a direction, the Tribunal may dismiss the application. Please be advised that if you do not comply by the date of the further adjourned Listing Hearing the Tribunal will consider whether it is appropriate to dismiss these objection applications. The further adjourned Listing Hearing will be held on 14 May 2004, at a time to be advised.’
On 11 May 2004 the Tribunal advised all parties in writing that the adjourned Listing Hearing would now take place on 17 May 2004 and that during the hearing it would seek advice on the intentions of the native title party representative with regard to contentions and evidence.
During the Listing Hearing of 17 May 2004 the representative for the native title requested a further extension of time in which to obtain affidavit evidence. The grantee party agreed to a short extension of time and the Government party concurred with the grantee party’s view. Accordingly a further amendment of the time for compliance was agreed, native title party contentions now being due on or before 7 June 2004.
On 3 June 2004 the Tribunal reminded the native title party in writing of its obligations regarding compliance. A further verbal reminder was made on 9 June 2004.
On 11 June 2004 I convened a Listing Hearing by which time the native title party had still failed to submit affidavit or other supporting evidence. Neither the Government party nor the grantee party was willing to approve a further extension of time for compliance and the native title party representative remained focussed on the possibility of reaching an agreement in terms of the Wongatha alternative heritage agreement, which the grantee party reiterated it was unprepared to execute. The Government party applied for the objection application to be dismissed and the grantee party concurred.
Conclusion
The Tribunal has received no documentary evidence, statements of evidence, nor affidavit evidence from the native title party as required by Directions 3(b) and 3(c) despite being advised that the matter would go to Inquiry on 4 March 2004. All parties were advised in writing of the due dates for compliance on each occasion that an extension of time in which to comply was granted.
Decision
Being satisfied that the applicant Cyril Barnes on behalf of Wongatha (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
21 June 2004
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