Cyril Barnes on behalf of Wongatha/Western Australia/Metex Resources

[2005] NNTTA 13

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Barnes on behalf of Wongatha/Western Australia/Metex Resources, [2005] NNTTA 13 (19 March 2005)

Application Nos:       WO04/232 and WO04/244

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

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

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The State of Western Australia (Government party)

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Metex Resources Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            18 March 2005
Date of reasons:              19 March 2005

Catchwords:  Native title – future act – proposed grant of exploration licence and prospecting 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 Act 1993 (Cth) ss 29, 148(b)

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

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), 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 Laurence Thomas, North East Independent Body

Mr Barrie Machin, Tamora Pty Ltd

Representative of the

grantee party:  Kevin Connell, Austwide Mining Title Management Pty Ltd

Representative of the

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 2 June 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 E39/1014 to Metex Resources 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) (WO04/232).

2. On 30 June 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P38/3211, P38/3212 and P38/3213 to Metex Resources 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) (WO04/244)

3. On 27 August 2004, Cyril Barnes on behalf of Wongatha (WC99/1) (‘the native title party’) lodged expedited procedure objection applications with the Tribunal in relation to the proposed licences.  The Wongatha native title claim has been entered on the Register of Native Title Claims since 10 February 2000.

Relevant facts

1. Exploration licence E39/1014 (WO04/232) comprises an area of 5.99 square kilometres, 46 kilometres south westerly of Laverton, in the shire of Laverton, and is overlapped 100% by the Wongatha registered native title claim.

2. Prospecting licences P38/3211-3213 (WO04/244) located in the shire of Laverton are overlapped 100% by the Wongatha registered native title claim.  Size and location from Laverton are as follows:

• P38/3211 - 104.18 hectares, 30 kilometres south of Laverton

• P38/3212 - 104.18 hectares, 30 kilometres south of Laverton

• P38/3213 - 107.89 hectares, 31 kilometres south of Laverton

1. In relation to both objections the Tribunal made directions on 14 September 2004 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 affidavit by 31 January 2005 (WO04/232) and 28 February 2005 (WO04/244). 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. At the preliminary conference on 28 September 2004 Mr Kevin Connell representing the grantee party advised that the grantee had signed a Regional Standard Heritage Agreement (‘RSHA’) for the Goldfields region and that the Wongatha Alternative Heritage Agreement (‘Wongatha AHA’) was not acceptable to the grantee.  Mr Dion Meredith, one of the representatives of the native title party, advised that the Wongatha People did not accept the RSHA.  The grantee party requested that the matter proceed to inquiry.

3. At an adjourned status conference on 19 January 2005, the grantee party again requested the matter proceed to inquiry.  Parties were reminded of the directions compliance dates and requested that the directions in both these matters be brought into line with each other which would require native title party compliance on or before 28 February 2005 for both matters.  Mr Meredith was advised by the Tribunal of the possibility of dismissal if there was no compliance by the native title party on this date.  He was also advised that he may make a submission for an extension to the compliance date.  Parties were advised that both matters were adjourned to a listing hearing on 10 March 2005.

4. The Government party complied with the directions by 15 February 2005 and submissions were received from the grantee party on 9 March 2005.  No native title party contentions or evidence have been forthcoming to date.

5. None of the native title party representatives Dion Meredith, Laurence Thomas or Barrie Machin were available to attend the listing hearing of 10 March 2005, despite attempts being made to contact them. Parties present at the hearing were advised that the matters would be heard before me at a listing hearing on 18 March 2005. On 15 March 2005 an email was sent to all parties informing them of the time and date of the hearing at which I would consider the conduct of the inquiry including whether it is appropriate to dismiss the objection applications pursuant to 148 (b) of the Act for non-compliance.

1. On 18 March 2005 I convened the listing hearing at which the Government party supported by the grantee party made application to dismiss the objection applications under s 148(b) on the basis of non-compliance with directions by the native title party. Mr Dion Meredith represented the native title party.

2. In 2004, I dismissed a number of Wongatha objections pursuant to s 148(b) of the Act (see for example, 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 that matter 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.

3. These matters have been in inquiry since the objection applications were lodged on 27 August 2004.  The original directions made on 14 September 2004 have not been amended which means that the native title party has been on notice for some five months of its obligation to comply.  The native title party was aware from the first preliminary conference on 28 September 2004 that no agreement was possible and the grantee party wished to proceed to an inquiry.  Parties were reminded of directions compliance dates on 19 January 2005.  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.

4. During the hearing there was discussion about whether a RSHA to protect Aboriginal Heritage existed between the grantee and native title parties.  Mr Connell says the grantee party has signed a RSHA in a form which binds the grantee party to comply with it in respect of all exploration and prospecting licences issued to it in the Wongatha claim area.  Apparently this was signed by Mr Leo Thomas and Mr Aubrey Lynch (two of the Wongatha named applicants) when the Goldfields Land and Sea Council (the Native Title Representative Body for the area) was acting for the Wongatha claimants.  While I have not seen the the executed RSHA it appears from my general knowledge of its contents that it is an agreement which will assist to protect the Wongatha native title party’s heritage and sites of particular significance to them.  In any event, I also record that the Government party will impose a condition on the grant of the tenements which will enable the Wongatha native title party to insist that the grantee party execute a RSHA.  The condition will be in the same terms as that set out in Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner (at [24]). While this does not, on the facts known to me, seem to be necessary it provides a further safeguard for the native title party in relation to Aboriginal heritage.

Decision

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

Hon C J Sumner
Deputy President
19 March 2005