David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Errawarra Pty Ltd

[2009] NNTTA 139

NATIONAL NATIVE TITLE TRIBUNAL

David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Errawarra Pty Ltd, [2009] NNTTA 139 (28 October 2009)

Application Nos:             WO08/1189, WO08/1211

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

David Stock & Others on behalf of the Nyiyaparli People – WC05/6 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Errawarra Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            15 October 2009

Date of reasons:              28 October 2009

Catchwords:  Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – spring order dismissing expedited procedure objection application in the event of non-compliance – objection applications dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)

Cases:Dixon v Northern Territory of Australia, [2002] NNTTA 48; (2002) 169 FLR 103

Jack Hogan on behalf of the Waanyi Peoples and Roy Dixon on behalf of the Garawa People/Northern Territory/Hartz Range Mines Pty Ltd, NNTT DO02/23, DO02/26, [2002] NNTTA 112 (20 June 2002);

Northern Territory/Gabriel Hazelbane & Ors (Warai and Angwinmil)/Michael Page and Ors (Jawoyn)/Michael Daniel Teelow and Gary Anthony Clarke, NNTT DO02/97, DO02/98, [2003] NNTTA 8 (4 February 2003))

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

Representative of the      

native title party:                 Ms Lea Notte, Yamatji Marlpa Aboriginal Corporation

Representatives of the         Ms Claire Malavaux, Department of Mines and Petroleum

Government party:              Mr Greg Abbott, Department of Mines and Petroleum

Representative of the          

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 27 August 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E46/780 to Errawarra Pty Ltd (‘the grantee party’). On 10 September 2008 the Government party also gave notice under s 29 to grant exploration licence E52/2218 to the grantee party. The notices included a statement that it considered that the grants attracted the expedited procedure.

2. On 23 December 2008, David Stock & Others on behalf of the Nyiyaparli People - Native Title Claim No. WC05/6 registered on 29 November 2005 (‘the native title party’) made expedited procedure objection applications to the Tribunal in relation to E46/780 (WO08/1189) and E52/2218 (WO08/1211) (henceforth referred to as ‘the proposed licences’).

Relevant facts

1. On 13 January 2009 the Tribunal made directions for WO08/1189 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 native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 28 April 2009. On 20 January 2009 similar directions were made in WO08/1211, requiring native title compliance by 11 May 2009. The directions contained a statement that the objections may be dismissed pursuant to s 148(b) of the Act if the objector fails within a reasonable time to proceed with the applications or to comply with a direction of the Tribunal.

2. Between January and August 2009 parties reported attempts to negotiate a mutually agreed outcome in relation to the proposed licences.  As a direct consequence five requests to amend the dates for compliance with directions were approved by the Tribunal, culminating in directions set on 4 August 2009 for both matters, requiring native title party compliance on or before 7 September 2009.  On 26 August 2009, the grantee party requested that the matters proceed to inquiry as agreement could not be reached.

3. The Government party complied with the amended directions by its due date, but neither contentions, evidence, nor submissions were received from the native title party. At the listing hearing on 17 September 2009, the grantee party sought dismissal of the objection pursuant to s 148(b) of the Act on the basis of non-compliance with a direction of the Tribunal by the native title party. The Government party supported the grantee party’s request. The native title party requested that directions be amended to allow a further period of time in which contentions and evidence could be submitted.

4. After consideration I permitted the native title party a further extension on the basis that the grantee party had only advised that it sought inquiry on 26 August 2009. Accordingly, directions were amended on 24 September 2009, requiring native title party compliance by close of business 15 October 2009. I also considered it appropriate to make a springing order, automatically dismissing the objections pursuant to s 148(b) of the Act in the event of non-compliance by the due date. In doing so I relied on previous cases where the Tribunal had considered the issue of springing orders:

• Dixon v Northern Territory of Australia, [2002] NNTTA 48; (2002) 169 FLR 103;

• Jack Hogan on behalf of the Waanyi Peoples and Roy Dixon on behalf of the Garawa People/Northern Territory/Hartz Range Mines Pty Ltd, NNTT DO02/23, DO02/26, [2002] NNTTA 112 (20 June 2002);

• Northern Territory/Gabriel Hazelbane & Ors (Warai and Angwinmil)/Michael Page and Ors (Jawoyn)/Michael Daniel Teelow and Gary Anthony Clarke, NNTT DO02/97, DO02/98, [2003] NNTTA 8 (4 February 2003)).

1. In the present cases there is no history of persistent non-compliance on the part of the native title party, however, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry.  In Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266, (at [13]) Member Sosso listed the factor to be taken into account when considering the Tribunal’s discretionary powers under s 148(b):

• whether the failure to comply was as a result of the actions of the objectors or their representative, or due to some other cause;

• whether there has been some reasonable explanation proffered for non-compliance, or rather that no explanation is given to the Tribunal. While the absence of an explanation may well prove fatal, the giving of an explanation does not of itself prevent the exercise of the discretion to strike out;

• whether the failure of the applicant to comply with Tribunal directions has resulted in prejudice to other parties, and if so, the nature of that prejudice;

• the history of the proceedings;

• the previous conduct of the applicant, such as previous failures by the applicant to comply with directions of the Tribunal;

• whether the expedited procedure inquiry itself raises novel issues, or whether the inquiry is part of a series of inquiries involving the same native title party such that failure to meet direction timelines is explicable and not unreasonable;

• the consequences of dismissal, particularly if the failure to comply has occurred by oversight or factors outside the control of the applicant.

1. In these matters, the native title party made no submissions prior to the due date for compliance as to its inability to comply, despite being aware of the consequences of the springing order.  Further, the native title party was provided with multiple opportunities to first reach an agreement, and then submit contentions and evidence in support of its objections.  It has not done so.

Decision

1. Expedited procedure objection applications WO08/1189 and WO08/1211 are dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

Hon C J Sumner
Deputy President

28 October 2009