Gordon Yuline & Others on behalf of the Nyiyaparli People/Western Australia/Allan Neville Brosnan
[2001] NNTTA 13
•29 January 2001
NATIONAL NATIVE TITLE TRIBUNAL
Gordon Yuline & Others on behalf of the Nyiyaparli People/Western Australia/Allan Neville Brosnan, [2001] NNTTA 13 (29 January 2001)
Application No: WO99/889 & WO99/890
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
Gordon Yuline & Others on behalf of the Nyiyaparli People (the Objectors)
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The State of Western Australia (Government party)
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Allan Neville Brosnan (Grantee party)
REASONS FOR A DETERMINATION
Tribunal: The Hon E M Franklyn QC
Place: Perth
Date: 29 January 2001
Catchwords: Native Title – future act – expedited procedure objection application – directions made June 2000 – no attempt by objectors to comply – dispute amongst objectors as to representation – adjournments to settle dispute allowed – no application to vary directions made – application to dismiss under s 148(b) made on 11 December – letter sent to objectors to make submission as to that application within specified time – no reply – matter relisted in January 2001 – Objectors still concerned with unresolved issue of representation – no attempt to comply with directions – objection dismissed.
Legislation:Native Title Act 1993 (Cth) ss 148, 237.; Aboriginal Heritage Act 1972
BACKGROUND:
By notice issued 25 November 1999 and advertised 1 December 1999 the State of Western Australia (the State) gave notice pursuant to s 29 of the Native Title Act (1993) (the Act) of its intention to grant the above-named grantee (the Grantee) prospecting licences P52/963 and P52/964 (the proposed tenements), such notice including the statement that it considered the proposed grants to attract the expedited procedure.
On 10 December 1999, Gordon Yuline, David Stock and Raymond Drage, on behalf of the Nyiyaparli People, the claimants under Native Title Application WC99/4, (the Objectors) lodged objections against the grant of each of the proposed tenements, the objections being respectively numbered WO99/889 and WO99/890. The grounds of the objections, in summary, were that each proposed grant fails to satisfy the criteria prescribed by s 237 of the Act. Each objection nominated the Pilbara Aboriginal Land Council (PALC) as the Objectors’ representative.
At a preliminary conference held 6 June 2000, directions were made in the usual form requiring the State to provide certain material and information on or before 1 August 2000, the Objectors to provide to the Tribunal and each other party on or before 8 August 2000 a statement of their contentions, to include a statement of the nature and location of sites or areas of significance on or adjacent to the proposed 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 parties that it is contended are likely to be interfered with directly by the grant of the tenement. They were also directed to provide copies of any documents to be relied upon and a statement of the evidence to be given by any witness for the Objectors and details of where it was proposed that the evidence be heard. Directions were also made to be complied with by the Grantee at a date subsequent to the directed date for the provision of the material required from the Objectors.
The State’s compliance with the directions was one day late. The Objectors did not comply by the directed date and had still not complied by 22 August 2000 when the matter was called on for a listing hearing by the Tribunal. The material provided by the State, the correctness of which is not challenged, reveals there to be no Aboriginal communities on or within the vicinity of the respective lands the subject of the proposed tenements and no Aboriginal sites registered under the provisions of the Aboriginal Heritage Act 1972 on or in respect of either of them.
At the listing hearing on 22 August 2000 the Tribunal was informed that the Objectors were, at that stage, unrepresented and the matter was adjourned to 5 September 2000 for the representation to be settled. No application was made to vary the directions addressed to the Objectors.
On 5 September 2000 Mr G McIntyre informed the Tribunal that due to the non-reappointment of the PALC as a recognised representative body, the Objectors’ representation was still uncertain. The matter was adjourned to 22 September 2000.
At the adjourned hearing on 22 September 2000, the Objectors’ representation had still not been settled. The Grantee’s representative contended that the proposed tenements were each situated on enclosed pastoral land and he was investigating whether native title had been extinguished. The hearing was adjourned to 3 November 2000 to allow the State to investigate the issue of extinguishment.
By letter dated 2 November 2000, received by the Tribunal on 3 November 2000, Raymond Drage, one of the Objectors, sought a four week adjournment of the two objection applications to enable, inter alia, negotiation for representation to be completed and necessary consents obtained. The letter gave Mr Drage’s address as “Nyiyaparli People, 6 Brolga Way, South Hedland, WA 6721” and was sent by facsimile from the address of the PALC.
At the adjourned hearing on 3 November 2000, the State advised that it was not contended that native title had been extinguished in respect of either of the proposed tenements. The adjournment requested by Mr Drage was granted to 1 December 2000.
10. At the hearing on 1 December 2000 the question of the Objectors’ representation was still unresolved and resolution appeared no closer than at the earlier hearings. The Objectors still had not complied with the directions of 6 June 2000. The State and Grantee each requested that the objection be dismissed pursuant to s 148 of the Act. On instructions from the Tribunal Member then dealing with the matter a letter dated 1 December 2000 was sent to Mr Drage advising of the request for dismissal on the basis of failure to comply with directions and to proceed with the objection application in a reasonable time, and called on the Objectors to make submissions in respect of that request on or before 8 December 2000.
11. On 4 December 2000 I was appointed the Tribunal Member for the purpose of the inquiry in respect of each expedited procedure application WO99/889 and WO99/890.
12. No reply to the Tribunal’s letter of 1 December 2000 nor any submission in respect thereof, nor any application to vary directions was received from Mr Drage or anyone on behalf of the Objectors by 15 January 2001 and the matter was relisted for hearing on 22 January 2001 for consideration of the applications for dismissal. Each of the Objectors was notified of that listing and its purpose by letter sent by facsimile on 17 January 2001 in the following terms.
“Objections to Expedited Procedure WO99/889 and WO99/890
On 6 June 2000, in the matters of two expedited procedure objection applications lodged on 10 December 1999 by Gordon Yuline, David Stock and Raymond Drage, on behalf of the Nyiyaparli people numbered WO99/889 and 99/890, the Tribunal made directions to be complied with by the native title party on or before 8 August 2000. Those directions had not been complied with in either case by 1 December 2000 when the State and the proposed grantee in each case applied for an order dismissing each such objection application on the grounds of failure to comply with such directions and failure to proceed with the same within a reasonable time.
On that date, the Tribunal wrote to the native title party at its address "Nyiyaparli People, 6 Brolga Way, South Hedland" for the attention of Mr Raymond Drage, that being the address given by him to the Tribunal in correspondence dated 2 November 2000. The letter advised of the applications for dismissal and required the native title party to make any submission in opposition on or before 8 December 2000. No reply has been received to that letter. The dismissal applications have been referred to Deputy President the Hon E M Franklyn QC for his decision and listed for hearing on Monday, 22 January at 10.00am.
If you wish to be heard on the question of dismissal of both or either objection application, it is essential that you take part in, or be represented at, the proceedings on 22 January and make such submissions as you think fit.
This letter is being sent to each of the three named objectors on behalf of the said People and to the People at 6 Brolga Way Port Hedland. It is also being sent to them, c/- the Pilbara Aboriginal Land Council, PO Box 764, Port Hedland, WA 6721, the address for service shown on the objection applications.
Would you please advise me as soon as possible whether you will participate in the listing hearing. If you have any queries in this matter, I will be pleased to discuss them with you. I may be contacted on 1800 640 501 (freecall) or 9268 9719.”
13. As mentioned in said letters, a copy letter was also sent to the Objectors’, “C/- the Nyiyaparli People at 6 Brolga Way, Port Hedland” and also “C/- the Pilbara Aboriginal Land Council, PO Box 764, Port Hedland, WA 6721”, the latter being the address for service shown on the objection applications. No reply was received from any of the addressees. On 19 January 2001, Mr Drage telephoned the Tribunal and advised that he would be available on telephone for the hearing on 22 January 2001. At that hearing, attempts were made to contact him but his phone was not answered. The State and the Grantee maintained their application for dismissal and each objection application was dismissed pursuant to s 148(b) of the Act on the grounds that the Objectors had failed within a reasonable time to proceed with the applications and to comply with directions by the Tribunal in relation to the applications. The Tribunal advised that it would publish reasons for its dismissal.
14. Subsequently a message was received from Mr Drage that telephones in Port Hedland were out of action on 22 January 2001 and it was for that reason that he could not be contacted to make submissions on that date. The matter was relisted for him to make submissions on 23 January 2001. At that relisted hearing Mr Drage was not available and was represented by Mrs Mary Attwood.
15. Mrs Attwood, on Mr Drage’s behalf, explained that the representation of the Objectors was still an issue within the native title claim group, further that there were concerns within the group as to representation by the Yamatji Land & Sea Council which was now the recognised representative body for the Pilbara area, and that further meetings were proposed to try to settle the issues. Nothing had been done in relation to the Tribunal’s directions.
Determination
16. The Tribunal remains satisfied that the Objectors’ failure to comply with the direction of 6 June 2000, or to otherwise proceed with either of objection application WO00/889 or WO00890 is, in each case, a failure that is unreasonable. For that reason each such objection application is dismissed pursuant to the provisions of s 148(b) of the Act.
E M Franklyn, QC
Deputy President
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