David Stock v Giralia Resources NL

[2000] NNTTA 333

NATIONAL NATIVE TITLE TRIBUNAL

David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL, [2000] NNTTA 333 (11 October 2000)

Application No:        WO99/836

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

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

David Stock & Others on behalf of the Nyiyaparli People (native title party)

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The State of Western Australia (Government party)

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Giralia Resources NL (grantee party)

REASONS FOR A DETERMINATION

Tribunal:       The Hon E M Franklyn QC
Place:             Perth
Date:              11 October 2000

Catchwords: Native Title – future act – expedited procedure objection application – dismissal for failure by the native title party to comply with directions and to proceed, within a reasonable time, with its objection.

Legislation:Native Title Act 1993 (Cth) ss 32, 76, 148, 237

BACKGROUND:

On 29 October 1999, David Stock, Gordon Yuline and Raymond Drage on behalf of the Nyiyaparli people (the native title party) lodged an objection to the grant of Exploration Licence No. 46/465 to the grantee under the expedited procedure provided for by s 32 of the Native Title Act 1993 (the Act) on the grounds that the grant would contravene each of the provisions of s 237(a), (b) and(c). The objection notice identified the Pilbara Aboriginal Land Council (PALC) as the objectors’ representative and stated that the type of evidence on which the objectors would rely was oral evidence from tribal elders, the evidence of experts and documentary evidence, including that of native stories and songs corroborated by evidence from relevant persons. The native title party can be presumed, at that stage, to be aware that the relevant issues for determination are those raised by s 237 of the Act. Unless each of the criteria set by paragraphs (a), (b) and (c) thereof are met, the objection will succeed.

By letter dated 19 April 2000, the Tribunal notified the objectors that a preliminary conference would be held on 2 May 2000 and enclosed a draft set of Directions for discussion at that conference.  Neither the State nor the native title party attended the conference on 2 May and the Tribunal was informed that negotiations for an agreement were possible.  The conference was adjourned to 8 June 2000.  On that date the question of jurisdiction arising out of the decision of the Full Court of the Federal Court in Ward (2000 170 ALR 159) was raised and the conference was again adjourned to enable enquiry to be made as to whether the factual circumstances required the issue of jurisdiction to be determined. The Tribunal was subsequently advised that jurisdiction was not an issue and the preliminary conference was reconvened and held on 23 June 2000 when directions were set. Those directions required (inter alia) the State to provide documents and information on or before 7 July 2000; the native title party to provide a statement of its contentions and a copy of each document relevant to the inquiry, including any affidavit to be relied upon, together with a statement of the evidence of each witness to be called by it, on or before 14 July 2000; the grantee to provide its statement of contentions and documents relied on and a statement of evidence of each of the witnesses it intended to rely on, on or before 28 June 2000; and all parties to provide legal submissions on or before 20 July. A listing hearing was set for 28 July and the objection hearing for 7 August 2000. A copy of the directions was sent to each party and contained a warning that if the native title party failed, within a reasonable time, to proceed with the application or to comply with a direction of the Tribunal, the objection might be dismissed pursuant to s 148(b) of the Act. A similar warning appeared on the draft set of directions sent on 19 April 2000 and on each set of the directions subsequently made. The State duly complied with the directions of 23 June, but the native title party failed to do so. The grantee advised he would rely on the State’s contentions and documents. The native title party’s failure resulted in the hearing date of 7 August 2000 being abandoned at the listing hearing on 28 July at which the Tribunal Member warned the native title party of the possibility of its objection being dismissed for non compliance and the hearing was adjourned to 11 August. In the interim, on 30 June 2000 the Yamatji Barna Baba Maaja Aboriginal Corporation had been recognised, with effect from 1 July 2000, as the representative body for the Pilbara area in lieu of the PALC. The Yamatji Barna Baba Maaja Aboriginal Corporation is commonly referred to as the Yamatji Land and Sea Council (YL&SC). On 11 August 2000 the Tribunal was informed by Mr Greg McIntyre, a legal practitioner then appearing for the native title party, that it had been unable to comply with the directions of 23 June 2000 because of difficulties in obtaining funding resulting from the change in the recognised representative body for the Pilbara area from PALC to YL&SC. The Tribunal Member then dealing with the matter extended the time for compliance with the directions to 25 August 2000 and set the date, 1 September 2000, for a Listing Hearing. Again, the native title party failed to comply with the directions by the due date. However, on 1 September 2000, Mr McIntyre, apparently on behalf of the native title party, lodged with the Tribunal documents said to be a Statement of the Objectors Contentions and a “Statement of Evidence of Objectors and Request for Hearing on Country”. Despite its title, the latter document was not in fact a statement of the evidence to be relied upon but rather an unsigned statement of assertions and submissions by the three named objectors. It provided no evidence of community or social activities, merely providing a list of activities which the objectors claim to have “a right to engage in”. It included the statement that the objectors had not had the opportunity to survey the tenement area to identify sites of particular significance. It requested the hearing of the objection to be held “on country” at which oral evidence would be given but gave no effective description of the evidence which would be relied on to deal with the issues raised by s 237. On the same day, following receipt of those documents, the Tribunal advised the parties by facsimile that a Directions Hearing would be held the following week. By letter dated 4 September 2000, signed as Chairperson of the Nyiyaparli People and providing a facsimile number for replies, the objector Raymond Drage advised that because of “the current status of the representative body in the Pilbara region” he had not been able to obtain instructions and complete the native title party’s contentions and that “we have not provided any instructions to either Mr Oliver Wije-Tillake or Mr Greg McIntyre as we have not been able to meet to obtain informed consent as required under the new Native Title Act 1993/98 regime”. The ‘informed consent’ there referred to was, I understand, the consent of the native title party to YL&SC representing it in the present matter. The letter sought a further adjournment “on the basis that the Native Title Claim group have not been able to make an informed decision in respect of this issue as a result of a lack of funding due to the current situation”. The Tribunal’s enquiries revealed that Mr Oliver Wije-Tillake was the in-house solicitor for the PALC and had instructed Mr McIntyre who had been appointed by ATSIC to provide assistance to PALC with the transition of services to YL&SC, the new representative body for the Pilbara. Enquiries made of Mr McIntyre confirmed that neither he nor Mr Wije-Tillake had any further instructions from the native title party and that they were each no longer acting. The Tribunal then set a Directions Hearing date, notified to the parties, of 11 September 2000. Further enquiries by the Tribunal revealed that no application was made by the native title party to YL&SC for representation but that that body was willing to act if requested. Advice was received from Mr Drage that he would represent the native title party at the hearing. The grantee gave oral notice to the Tribunal that he would seek dismissal of the objection for continued non-compliance by the native title party. At the hearing on 11 September 2000, Mr Drage informed the Tribunal that the native title party was not instructing the PALC or Mr McIntyre to represent it and was not in contact with the YL≻ further, that it was not relying on the Statement of Contentions or the Statement of Evidence lodged by Mr McIntyre; that ‘the people’ had been involved in law and cultural activities since 23 June, but a group meeting was to be held later that day. It was apparent from the discussion that the native title party had not prepared its contentions nor collated its evidence to support its objections and had given that matter no priority. It was also clear that in all probability nothing would be done to that end until representation and/or funding was achieved. The grantee drew attention to the fact that the possibility of dismissal for non-compliance had been raised with the native title party representative by the Tribunal Member at the hearing on 28 July 2000 at which an adjournment had been sought and obtained by the native title party. The grantee sought dismissal of the objection. The Tribunal reminded Mr Drage that the recognised representative body for the Pilbara area was now the YL&SC which was prepared to act but had received no request to do so and was authorised to fund applications for native title parties which it represented. Further, that the Tribunal has an obligation to conduct its inquiries in a just, economical and prompt way and is required to take into account the interests of all parties, that the objection had been lodged in October 1999 and the native title party had still not lodged or served its contentions and/or statement of evidence on which its objection was founded and had rejected the documents lodged on its behalf by its former legal adviser, Mr McIntyre. It pointed out that the native title party had failed to comply with the directions made, despite the grant of extensions of time, and that the issue of representation was not of itself sufficient ground for its non-compliance with directions to lodge contentions and statements of evidence. The Tribunal then directed that on or before 25 September, the native title party lodge and serve its Statement of Contentions, legal submissions, copies of all relevant documents and a statement of the evidence of each witness it proposed to call verified by affidavit, with advice as to where it proposed that the evidence be heard, and informed Mr Drage that failure to comply would result in dismissal of the objection. A listing hearing was set for 28 September 2000. Mr Drage acknowledged that he understood the position. A copy of the directions was served on each party and contained the statement that the parties had liberty to apply to vary the same. There was no compliance or any application to vary the directions by 25 September and on that date a Tribunal officer contacted Mr Drage by mobile telephone. Mr Drage informed the officer that he was then travelling from Perth to Port Hedland by car in company with Mrs Mary Attwood and referred the Tribunal officer to her to discuss the matter. To the Tribunal’s knowledge, Mary Attwood was formerly a member of the PALC. Her name does not appear on the Register as a member of the claimant group. In that telephone call she advised that she was assisting the native title party to gain representation for future act matters and had unsuccessfully sought representation from a Perth solicitor and that it was unfair to dismiss the matter as the native title party had no representative and the YL&SC did not understand their needs. She further advised that Mr McIntyre was not instructed to act and that a submission from the native title party would be lodged with the Tribunal the following day (26 September). She was given the Tribunal’s facsimile number for the purposes of sending that submission without delay. Nothing, however, was received from the objector or Mrs Attwood and the matter was called on for hearing again on 28 September. Mr Drage could not be contacted at the address given to the Tribunal, (the Port Hedland Regional Aboriginal Corporation), but Mrs Attwood was there. She advised that she had no authority to represent the objectors but complained at the unfairness of dismissal of the objection because of the native title party’s lack of representation. The Tribunal on that date dismissed the objection with advice that its reasons and the background to the dismissal would be published.

The Tribunal dismissed the objection because of the objector’s failure to comply with the directions as set out above, and also because, by its failure to provide any contentions, submissions or statements of evidence despite extensions of time to do so and, on the face of it, no attempt to collate any such evidence, it demonstrated a failure, within a reasonable time, to proceed with the objection application.  The dismissal of the objection to the grant of Exploration Licence 46/465 is confirmed.

The factual circumstances relevant to an expedited procedure determination are found in s 237 of the Act. The objection alleges the existence of the relevant factual circumstances which, so far as s 237(a) and (b) at least are concerned, are or should be within the knowledge of the objectors. That does not give rise to an onus of proof but the section does require evidence of the existence of the relevant factual circumstances when an objection relying on the same is made. That is to say there must be evidence of the fact of the carrying on of community or social activities (said to be likely to be interfered with) of the persons who are the holders of native title in relation to the relevant land and evidence of the existence of areas or sites of particular significance in accordance with their tradition to the persons who are the holders of native title (said to be likely to be interfered with). This, in my opinion, is apparent from the provisions of ss 237 and 76 of the Act and the required content of Form 4 (the objection form). It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the Native Title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection. This would enable the initial directions to be set with a time frame reasonably capable of being complied with. Where the parties consent, it is the Tribunal’s practice to enable the parties a period of some weeks to endeavour to achieve agreement to a consent determination or withdrawal of the objection. The real possibility of any such agreement is explored at the first preliminary hearing and, where the parties wish to negotiate, a period of time is allowed for this to occur. If the parties do not wish to negotiate or there is no reasonable prospect of settlement, directions set by the Tribunal giving dates for compliance are, in the absence of agreement in the interim, intended and required to be complied with. This practice has been advised to all representative bodies. In the present case, it is apparent that no steps had been taken to prepare the objectors’ case in an evidentiary or even a legal sense despite the time elapsed since the notification date and the lodging of its objection, and despite the fact that the PALC was its representative until 30 June 2000 and that the issues raised by s 237 do not appear to require any special understanding by the new representative body such as to render representation by it inappropriate.

The Hon EM Franklyn QC

Deputy President