Dixon v Northern Territory of Australia

[2002] NNTTA 48

Reported at (2002) 169 FLR 103

NATIONAL NATIVE TITLE TRIBUNAL

Roy Dixon and Peggy Mawson on behalf of the Gurdanji Karranjini People; Gordon Lansen on behalf of the Mara, Alawa, Yanyuwa and Gurdanji People; Les Hogan on behalf of the Garawa and Gurdanji People/Northern Territory/Ashton Mining Ltd; North Mining Ltd, [2002] NNTTA 48 (15 April 2002)

Application No: DO01/140, DO02/16, DO02/17, DO02/20, DO02/27

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

- and -

IN THE MATTER of an Inquiry into an Expedited Procedure Objection Application

Roy Dixon and Peggy Mawson on behalf of the Gurdanji Karranjini People,

Gordon Lansen on behalf of the Mara, Alawa, Yanyuwa and Gurdanji People,

Les Hogan on behalf of the Garawa and Gurdanji People (Native Title Parties)

- and -

The Northern Territory of Australia (Government Party)

- and -

Ashton Mining Ltd,

North Mining Ltd (Grantee Parties)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:                   John Sosso                
Place:  Brisbane  
Date:  15 April 2002

Hearing Dates:         27 March , 5 April 2002

Catchwords:  Native title – future act – proposed grant of exploration licences expedited procedure applications – failure to comply with Directions – objection applications dismissed.

Legislation:Native Title Act 1993 (Cth) ss. 147, 148(b).

Cases:Attorney-General (Duchy of Lancaster) v London and North Western Railway Company [1892] 3 Ch 274

Freeman v Rabinov [1981] VR 539

Re Jokai Tea Holdings Ltd [1993] 1 All ER 642

Roy Dixon/Northern Territory/Plenty River Corporation Ltd DO01/50, unreported, Member Stuckey-Clarke, 10 December 2001

Stubbs v ES &A Bank Ltd [1959] Qd R 158

Teelow/Page/Northern Territory DO01/22, unreported, Member Sosso, 10 October 2001

Western Australia/Raymond Ashwin & Ors/Sipa Perenjori NL WO99/17, unreported, Hon C J Sumner, 18 November 1999

Western Australia/Rollick Dimer and Edna Reid/Kalgoorlie Boulder Pty Ltd WO98/354, unreported, Hon C J Sumner, 24 June 1999

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

[1] The Tribunal has before it a most unusual set of circumstances.  In each of the matters currently before the Tribunal (see Schedule 1), the government party gave the relevant notices pursuant to section s 29 of the Native Title Act 1993 (Cth) of its intention to grant the relevant exploration licences to each of the grantee parties, and included in these Notices a statement that it considered that the respective grants attracted the expedited procedure.

[2] In each case an expedited procedure objection application was made by the respective native title parties to the Tribunal. Likewise in each case the native title parties represent registered native title claimants, which native title determination applications have been entered on the Register of Native Title Claims.

[3] In accordance with the standard practice of this Tribunal, Directions were made to each of the government, grantee and native title parties to provide contentions and other relevant documents to enable an inquiry under the Act to ascertain whether or not the expedited procedure was attracted. In each case the Directions made were in the standard form, and none of the above parties raised any particular concerns about those Directions.

[4] Each of the inquiries was at the very early stages of the inquiry process. In the instance of DO01/140 Directions were made on 18 December 2001, and the first contentions to be filed were those of the government party, and they were not due until 23 April 2002.  In each of the remaining inquiries, Directions were made on 27 February 2002, and the government party was not required to lodge contentions until 10 June 2002.

[5] Apart from the fact that each of these inquiries is at an early stage of the expedited procedure inquiry process, the other fact each have in common is that the grantee party in each case is part of the Rio Tinto group of companies (hereafter referred to as “Rio Tinto”).

[6] Rio Tinto and the Northern Land Council, the representative body who provides funding to each of these native title parties for their expedited procedure objection applications, have been involved for some time in negotiating a Memorandum of Understanding which is designed, inter alia, to provide a comprehensive mechanism for dealing with future act applications.

[7] On 25 March 2002 Mr Mark Rumler, a Solicitor with the Northern Land Council wrote to the Tribunal with respect to numerous expedited procedure inquiries. Each of these maters fell within the list of inquiries enumerated in the letter. Mr Rumler said:

“We refer to these matters and to the Memorandum of Understanding dated 21 December 2001 between Rio Tinto Pty Ltd and the Northern Land Council (“the MOU”).

The NLC intends to devote resources to implementing the Memorandum, rather than to unnecessarily prosecuting the above matters before the Tribunal.

Accordingly we advise that we will not be adducing evidence or further prosecuting the above matters before the Tribunal.

We assume that the Tribunal will now call these matters and determine the objections.  Out of courtesy to the Tribunal we are happy to attend on that date to assist the Tribunal.”

[8] I convened two Listings Hearings (27 March and 5 April 2002) to determine exactly what this letter meant in terms of the Objections. The initial advice provided to the Tribunal by the representatives of the native title parties at the 27 March 2002 Listings Hearing was later clarified in an exchange of correspondence between the Tribunal and the Northern Land Council.

[9] In his letter dated 27 March 2002 Mr Rumler said, inter alia:

“the position is that we, as solicitors acting for the objectors, are unable to comply with the Tribunal’s orders for the filing of contentions and other material.  The reason we are unable to comply with those orders is that the body responsible for funding, the NLC, is no longer prepared to provide resources for compliance with those orders.  The reason the NLC has made this funding decision relates to the alternative process now available under the Memorandum of Understanding dated 21 December 2001 between Rio Tinto Pty Ltd and the NLC.”

[10] At the Listings Hearing of 5 April 2002 the following answers were given by Mr Frith to questions I asked:

“MR SOSSO: Mr Levy and Mr Rumler represent the objectors and the Northern Land Council is supplying funding for that representation?

MR FRITH: Yes Member

MR SOSSO: And your instructing solicitors have informed you that they continue to hold instructions from each of the objectors?

MR FRITH: Yes Member

MR SOSSO: And your instructing solicitors have informed you that due to lack of funding there is no capacity to comply with directions made by the Tribunal?

MR FRITH: Yes Member

MR SOSSO: At this point of time there is no likelihood that if I make…a direction for the supply of material that the material will be supplied because there is no funding and no capacity to comply with that direction, is that correct?

MR FRITH: Yes Member.”

[11] The difficulty confronting the Tribunal in these matters was that at the time of the Listings Hearing there had been no failure to comply with a Direction. Instead it was made abundantly clear to me that Mr Levy and Mr Rumler continued to hold instructions from the Objectors. I was advised that the Northern Land Council (who employs both Mr Levy and Mr Rumler) funded the Objectors, but had withdrawn all financial support for this process and that, consequently, there were no prospects that any directions I made would be complied with.

[12] Obviously the preferable course of action would have been the withdrawal of the various objections. I was informed that this course of action would not be followed as there were no instructions from the Objectors to do so. Likewise there were no prospects that the Tribunal would be provided a written request to dismiss the objections pursuant to section 149.

[13] At the 5 April 2002 Listings Hearing I queried whether the various objections should be dismissed pursuant to section 147, which empowers the Tribunal to dismiss an application if, at any stage of an inquiry, the Tribunal is satisfied that an application is frivolous or vexatious.  The point here, is that although the various objections were made in good faith and certainly were neither frivolous or vexatious at that stage, whether a stated intention by an Objector to not comply with any Directions the Tribunal may make, renders an objection application frivolous or vexatious. This was disputed by the native title party, primarily on the basis that whether an objection is frivolous or vexatious is to be ascertained at the commencement of the proceedings with the lodging of a Form 4.

[14] Although it is not necessary for this matter to reach any settled view, my reading of section 147 is that the test of whether an objection is frivolous or vexatious is not limited to the circumstances present at the commencement of the proceedings. The section has been drafted specifically to ensure that it can be activated at any stage having regard to the particular circumstances. An objection commenced appropriately can subsequently become frivolous or vexatious having regard either to the conduct of the proceedings or the material presented to the Tribunal. It would be a quite an unusual set of circumstances that would justify the Tribunal exercising its powers under this section, but this section should not be interpreted in an unduly narrow manner. Moreover I am not prepared to conclude that if an Objector informs the Tribunal that it will not comply with any directions made (or to be made), and that the material before the Tribunal is scant (limited to the Form 4), that in appropriate circumstances section 147 may not be an appropriate means of resolving the situation. For many years the Courts have recognised that when proceedings are obviously unsustainable that a court/tribunal has the discretion pursuant to the type of power encapsulated within section 147 to dismiss/strike out – see Lindley LJ in Attorney-General (Duchy of Lancaster) v London and North Western Railway Company [1892] 3 Ch 274 at 277.

[15] The next issue was whether it was open to me to dismiss the various objections pursuant to section 148(b) which provides that the Tribunal may dismiss an application at any stage of an inquiry if:

“(b) the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.”

[16] I received oral submissions from both Mr Lavery and Mr Frith on this point. Both suggested that the power granted to the Tribunal under section 148(b) can only be activated when a direction has been breached or when there have been inordinate delays in prosecuting an objection. As previously mentioned, there were no technical breaches of a direction, rather the Tribunal was formally put on notice of an intention not to comply or to prosecute the Objections.

[17] There are a number of Tribunal determinations on the proper approach to applying section 148(b). It has been pointed out that there is a need for adequate resources to be committed to the future act process by all parties – see Western Australia/Raymond Ashwin & Ors/Sipa Perenjori NL WO99/17, unreported, Hon C J Sumner, 18 November 1999. However, the resourcing issue is particularly critical for indigenous Objectors, and accordingly it is critical that appropriate funding is provided by representative bodies – see Western Australia/Rollick Dimer and Edna Reid/Kalgoorlie Boulder Pty Ltd WO98/354, unreported, Hon. C J Sumner, 24 June 1999. Generally the factors to be taken into account in determining whether to dismiss under section 148(b) were set out in Teelow/Page/Northern Territory DO01/22, unreported, Member Sosso, 10 October 2001.

[18] Here the issue was a decision not to prosecute the objections due to a supervening event, i.e. the Memorandum of Understanding with Rio Tinto.  It is not a case of representative body unilaterally withdrawing funding for a reason unconnected with the achievement of a result which presumably is perceived to be in the best interests of the Objectors. However, whatever may be the reason for the decision not to provide any more funding for the prosecution of the various objections, the result is the same. The Tribunal had before it objections that were not being prosecuted and the whole objection inquiry process was rendered otiose.

[19] Recently Member Stuckey-Clarke was confronted with a not totally dissimilar situation. The solicitor for the native title party wrote to the Tribunal, inter alia, in the following terms:

“After further consideration, we withdraw on behalf of the Objectors the respective applications for an extension of time within which to file and serve contentions in the within matters. In the circumstances, which include the capacity of the NLC to provide resources regarding these matters, the Objectors will not be filing material in support of their Objections. We assume that the NNTT will proceed to determine the Objections on that basis.”.

[20] Member Stuckey-Clarke made these comments: “In my view an avowed refusal by an objector to comply at any time with the directions of the Tribunal is in itself a sufficient basis for dismissal” - see. Roy Dixon/Northern Territory/Plenty River Corporation DO01/50, unreported, 10 December 2001 at [12]. I agree with the those comments of Member Stuckey-Clarke, and likewise I am of the view that an avowed refusal to comply with the directions made by the Tribunal by a party is a prima facie basis for the exercise of the dismissal discretion in section 148(b).

[21] At the 5 April Listings Hearing I indicated to the parties that I was of the view that an avowed refusal to comply with the directions of the Tribunal (for whatever reason) at an early stage of the inquiry process could activate the operation of section 148(b). In the circumstances whether this was appropriate in the matters before me did not come to pass, because, by consent a different approach was suggested.

[22] All parties agreed that the appropriate course that the Tribunal should follow was making a “springing” order for the supply of contentions by the native title parties. In short the parties agreed that the Tribunal should direct that the various native title parties lodge and serve their contentions within one week, and in the event that this did not occur, that the native title parties objections be struck out.  A form of springing “order” was agreed during the Listings Hearing.

[23] On that same day correspondence was forwarded to Mr Rumler by the Tribunal which set out the direction I made in each of these matters. That direction was as follows:

“(1) On or before 12 April 2002 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 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 (which is provided to the other parties) including the nature of the documents and the manner in which it is proposed that they may be used by the Tribunal; and

(c) if a request is made for an oral hearing, a statement of the evidence to be given by any witness for the native title party and the details of where the party proposes that the evidence is heard.

(1A) Should the native title party not comply with Direction one (1) by close of business 12 April 2002 the Tribunal, pursuant to section 148(b) of the Native Title Act, shall forthwith Dismiss the Expedited Procedure Objection Applications DO 01/140, DO02/16, DO02/17, DO02/20 and DO02/27.”

[24] The Tribunal from time to time makes “springing”, “guillotine” or “preemptory” orders. They are not made lightly, and usually only after a pattern of non-compliance with directions. The Tribunal in expedited procedure objection inquiries uses all possible and reasonable endeavours to ensure that each party is given a fair opportunity to remedy their default. However, there are circumstances where such orders are appropriate, and, indeed necessary, and it is open to the Tribunal to make them. The principle underlying them is that Tribunal directions must be complied with, and a party who persistently or deliberately and without proper excuse fails to comply with them, must be called to account for that action or course of conduct – see Re Jokai Tea Holdings Ltd [1993] 1 All ER 630.

[25] A springing direction must be clear and unambiguous. The party against whom it is made should not be in any doubt of the action required and the consequences of failing to comply.  The event that will activate the direction also must be beyond doubt – Stubbs v ES&A Bank Ltd [1959] Qd R 158 and Freeman v Rabinov [1981] VR 539.

[26] In this instance the various native title parties were legally represented, and their legal representative was present when these directions were made. The form of the directions were agreed to, and the direction was made with the consent of each of the parties. I formed the view during the Listings Hearing, after hearing the submissions of each of the parties, that making springing directions for each of the matters was appropriate. The form of the directions was clear and I specifically asked each of the parties if any of them had any difficulties with it. Each of the parties answered in the negative.

[27] By close of business` 12 April 2002, and in accordance with the advice given to the Tribunal by both Mr Rumler and Mr Frith, no contentions were lodged by any of the native title parties. A ‘springing” or “guillotine” order/direction is self-executing.  Accordingly, by close of business 12 April 2002 each of these objections were dismissed.

[28] This Decision, then, is formal only as the springing direction made in each of these matters on 5 April 2002 requires no further action. Nevertheless it is a unusual circumstance that an administrative tribunal makes directions such as these, and it is important that the background for these directions is made clear. It is important to note that they were requested by the parties and not imposed by the Tribunal. Likewise it is relevant to highlight that the matters came  to this state by the decision of the representative body to withdraw funding for these objection applications. I have set out the background as to why this decision was made, and in doing so I am not in any way judgmental about how these matters have resolved themselves.  However, it would be remiss if I did not indicate my preference for any future matters like these  being dealt with differently. It certainly would be preferable, and this was re-iterated by the representative of the grantee parties at the Listings Hearing of 5 April 2002, that if events supervene such as these rendering an objection application no longer needed/relevant, then instructions should be obtained from the relevant Objectors and the objection formally withdrawn.

Decision

[29] Each of the native title parties having failed to comply with Directions made by the Tribunal on 5 April 2002, each objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth) in accordance with the terms of the Directions.

John Sosso
Member