Janice Barnes & Ors (Wangan & Jagalingou)/Queensland/D’Aguilar Gold Limited; Waratah Coal Pty Ltd; Hancock Prospecting Pty Ltd - [2009] NNTTA 97

NATIONAL NATIVE TITLE TRIBUNAL

Janice Barnes & Ors (Wangan & Jagalingou)/Queensland/D’Aguilar Gold Limited; Waratah Coal Pty Ltd; Hancock Prospecting Pty Ltd, [2009] NNTTA 97 (19 August 2009)

Application No: QO08/144 , QO08/145, QO08/146, QO08/188 & QO08/189

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Janice Barnes, Jessie Driver, Owen McEvoy, Deree King and Patrick Fisher on behalf of the Wangan and Jagalingou People (native title party)

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The State of Queensland (government party)

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D’Aguilar Gold Limited (grantee party)

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Waratah Coal Pty Ltd (grantee party)

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Hancock Prospecting Pty Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Tribunal:                   John Sosso
Place:                         Brisbane
Dates of dismissal:    10 August and 17 August 2009
Date of reasons:        19 August 2009

Representatives:

Native title party: Mr David Mailman, Queensland Cultural Heritage and Native Title Management Services Pty Ltd.

Government party: Ms Jacinta Dwyer, State of Queensland.

Grantee parties: Ms Angela Murphy, Hancock Prospecting Pty Ltd,
Mr Alan Thompson, Mining Tenement Services,
Mr Mark Imber, Waratah Coal Pty Ltd.

Catchwords: Native title – future act – proposed grant of exploration licences expedited procedure objection applications – inability to finalise negotiations – springing direction - failure to comply with Directions – expedited procedure objection applications dismissed.

Legislation:Native Title Act 1993 (Cth) ss. 29, 31, 32, 148(b).

Cases:Teelow v Page (2001) 166 FLR 266
Dixon v Northern Territory (2002) 169 FLR 103
William Harney (on behalf of the Wardaman Group)/Northern Territory/David J Langley [2002] NNTTA 226 (4 November 2002) Member John Sosso
Northern Territory/Gabriel Hazelbane & Ors (Warai and Angwinmil)/ Michael Page & Ors (Jawoyn)/Michael Daniel Teelow and Gary Anthony Clarke [2003] NNTTA 8 (4 February 2003) Member John Sosso
Michael Page on behalf of the Jawoyn People/Northern Territory/Australian Vanadium Pty Ltd [2003] NNTTA 31(17 February 2003) Hon C J Sumner
Ruby Saltmere (Indjilandji Dithannoi)/Queensland/Savannah Resources Pty Ltd [2005] NNTTA 54 (5 August 2005) Member John Sosso
Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Saunders, [2006] NNTTA 76 (15 June 2006), Hon C J Sumner

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

[1] On the dates specified in the Schedule, the State of Queensland (“the government party”) gave notice under s. 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant Exploration Permits for Mineral (EPM) to D’Aguilar Gold Limited, Waratah Coal Pty Ltd and Hancock Prospecting Pty Ltd (“the grantee parties”), and included in the notices a statement that it considered that the grants attracted the expedited procedure.

[2] On the dates specified in the Schedule, Janice Barnes, Jessie Diver, Deree King, Patrick Fisher and Owen McEvoy on behalf of the Wangan and Jagalingou People (“the native title party”) lodged with the National Native Title Tribunal (“the Tribunal”), expedited procedure objection applications pursuant to s. 32(3).

On the dates specified in the Schedule, Deputy President Sumner, as delegate of the President, appointed me as the Member to constitute the Tribunal for the purpose of the expedited procedure objection inquiries.
It is the practice in Queensland for the Tribunal to convene a Preliminary Conference followed by Status Conferences, where each of the parties indicates whether they wish to negotiate a consensual outcome. If the parties are actively engaging in negotiations, or at least taking the necessary steps to enable such negotiations to occur, the Tribunal will not make Directions for the holding of an inquiry. Directions are only made when it is clear either that one or more of the parties does not wish to negotiate or, for whatever reasons, negotiations have failed or stalled. Accordingly, in most instances Directions are only made some time into the process.
In the case of objections QO08/144, QO08/145 and QO08/146 conferences were convened on 21 November 2008, 19 December 2008, 23 January 2009, 20 February 2009 and 24 April 2009. At the outset the Tribunal was informed that the relevant grantee parties were willing to negotiate an outcome with the native title party and that the government party had circulated the relevant documentation for the purposes of section 31. Only some time later did it become clear that there were internal disputes within the native title party such that it was unlikely that an agreement would be executed by all of the persons comprising the Applicant. The Tribunal was further informed by the then solicitor for the native title party, Mr. Michael Owens, that a consent determination would be sought. Having been informed that all of the persons bar one comprising the Applicant had executed relevant agreements and that both the government and grantee parties were agreeable to a consent determination, I adjourned each of these objections sine die to enable the necessary discussions to occur and documentation to be prepared.
In addition to the previously mentioned objections, two later objections, QO08/188 and QO08/189 were also lodged on 22 December 2008. The relevant grantee party also indicated its desire to reach a consensual outcome, and, accordingly, on 24 April 2009 I also adjourned these objections sine die.
On 23 June 2009 Mr. Owens informed the Tribunal that he no longer held instructions from all of the persons collectively comprising the Applicant. He further advised:
“I no longer consider that I hold instructions and will no longer be representing the W & J Group in any of their Future Act or Cultural Heritage related matters. I am aware that there is no other solicitor whom has any likelihood of getting instructions in the near future or at all. I have no instructions to withdraw any objections lodged by this Firm on behalf of the abovementioned claim group.”
In early August 2009 the Tribunal was contacted by Mr. David Mailman, the Managing Director of Queensland Cultural Heritage and Native Title Management Services Pty Ltd, who indicated that he had been engaged by a majority of persons comprising the Applicant. Those of the Applicant who had engaged Mr. Mailman were Mr. McEvoy, Mr. Fisher and Ms. Diver. Mr. Mailman advised the Tribunal that he was confident that once the remaining Applicant signatory (Mr. McEvoy) had viewed the partially executed agreements he would also execute the agreements, thereby ensuring that remaining steps to a consensual outcome could activated.
The Tribunal convened a Status Conference on 10 August 2009. It became clear during the course of the Conference that, with the exception of QO08/144, agreements had not been reached with either Waratah Coal Pty Ltd or Hancock Prospecting Pty Ltd. Further, in the case of Hancock Prospecting Pty Ltd, the Tribunal was informed that this party’s patience had been exhausted and a request was made for the relevant matters to be set down for an inquiry. In short, in all the objections other than QO08/144 not only had none of the persons comprising the Applicant executed an Ancillary Agreement, no such Agreement had been finalised with the relevant grantee parties.
With respect to QO08/144, the Tribunal was informed that an “in principle” agreement had been reached by the grantee and native title parties and the only impediment to the finalisation of the process was the execution by Mr. McEvoy. Mr. Mailman advised the Tribunal that he was awaiting a copy of the agreement from Mr. Owens but that he was confident that Mr. McEvoy would execute it. Mr. Mailman was due to see Mr. McEvoy on Wednesday 12 August 2009 and he expected that he would then sign the State Deed.
The Tribunal was placed in an unfortunate situation. For a number of months the Tribunal had been advised that agreements had been reached with grantee parties and that the only impediment was one of the persons comprising the Applicant who was refusing to sign. This situation was to be addressed by means of a consent determination. Then, having adjourned the matters sine die, the solicitor on the record withdrew. Having relisted the matters, the Tribunal was then advised by the new representative of some of the persons comprising the Applicant that the signature of the remaining Applicant would be obtained. During the course of the Status Conference, it became clear that in four of the five matters there was no agreement with the relevant grantee parties, and one of the grantee parties was exasperated and wanted the matters resolved by an inquiry. In short, in more than six months there had been next to no progress made on consensually resolving the bulk of the objections.
Directions were made for all matters on 10 August 2009 requiring the native title party provide a statement of contentions and related documents to the Tribunal and each other party by close of business 10 August 2009, or in the case of QO08/144 by close of business 17 August 2009. Direction 1A then provided that if the native title party had not complied by close of business on either 10 August or 17 August 2009 the Tribunal, pursuant to s.148(b) of the Native Title Act 1993, would dismiss forthwith each expedited procedure objection application.
The principles governing the making of “springing”, “guillotine” or “preemptory” directions was explained in Dixon v Northern Territory (2002) 169 FLR 103 at [24] as follows:
“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 [1993] 1 All ER 630.”
The ability of the Tribunal to dismiss an expedited procedure objection application, at any stage of an inquiry, is focused in section 148 on either the Tribunal’s lack of power to make a determination (s.148(a)) or the failure of the applicant to either proceed with the application or comply with a direction (s.148(b)). In this matter the Applicant has failed over a very long period of time to reach agreement with the other parties due to internal divisions. Where the Tribunal is informed either that an Applicant will not be complying with directions or that, by a course of conduct, it is clear that this is the case, the Tribunal can either dismiss an application immediately or make guillotine directions. Examples of where the Tribunal has made guillotine directions when it was informed that the applicant would not be complying with directions include: Dixon v Northern Territory (2002) 169 FLR 103, Harney (Wardaman Group)/Northern Territory/Langley [2002] NNTTA 226, Northern Territory/ Hazelbane & Ors (Warai and Angwinmil)/Page & Ors (Jawoyn)/Teelow and Clarke [2003] NNTTA 8 and Page on behalf of the Jawoyn People/Northern Territory/Australian Vanadium Pty Ltd [2003] NNTTA 31. If the Tribunal encounters a native title party with a history of persistently failing to comply with directions through no fault of any other party, guillotine directions may also be made – see, for example: Velickovic on behalf of the Widji People/Western Australia/Saunders [2006] NNTTA 76.
The principles to be applied when dismissing an expedited procedure objection application pursuant to s.148(b) were explained in Teelow v Page (2001) 166 FLR 266 at [13]. I adopt those principles for the purpose of this matter. It is also the case that the Tribunal is required to deal with expedited procedure objection inquiries in a manner consistent with the scheme of the legislation. This was explained in Saltmere (Indjilandji Dithannoi)/Queensland/Savannah Resources Pty Ltd [2005] NNTTA 54 as follows at [10]:
“The Tribunal is required to act promptly when considering expedited procedure objection inquiries – per Nicholson J Little v Western Australia [2001] FCA 1706 at [85]. The term ‘expedited procedure’ is self-explanatory, and the Parliament has put in place a process for low impact future acts designed to achieve an outcome within reasonable time frames.”
In these matters (other than QO08/144) it became apparent at the Status Conference of 10 August 2009 that there were no realistic prospects of Mr. Mailman being able to resolve agreements with the relevant grantee parties and obtain all of the signatures of the Applicant in either a short period of time, or at all. I formed the view that there was some prospect of Mr. Mailman being able to resolve expedited procedure objection application QO08/144 and Directions were made that provided him with one week to resolve the issue of Mr. McEvoy executing the agreement. I indicated that if Mr. McEvoy did execute the State Deed within the week I would vacate the guillotine direction. Unfortunately the Tribunal was not advised that Mr. McEvoy had executed the State Deed and accordingly, the guillotine Direction became operational at close of business 17 August 2009.
The Tribunal is cognisant that even though the State of Queensland asserts the expedited procedure, it is the policy of the State to constructively engage with grantee and native title parties in an endeavour to achieve a consensual outcome. It is in the broader interests of the community that such negotiations take place. This is not just because formal inquiries are costly and time consuming but also because it is in the interests of both native title claimants and the exploration and mining industry that good relations are fostered at the exploration stage, which are then continued when higher impact mining occurs. Despite this, the Act requires that the Tribunal conducts its inquiries in an efficient and timely manner. The parties cannot assume that they can engage in an open-ended right to negotiate process in the context of an expedited procedure inquiry. If the State wishes to facilitate this approach then it should not assert the expedited procedure, and then negotiate with the other negotiation parties in good faith. As long as the Tribunal’s jurisdiction is enlivened by the lodging of an expedited procedure objection application, the Tribunal will be required to set strict time limits on negotiations, and when it becomes clear that those negotiations are not proceeding, have stalled or are doomed to fail, Directions for an inquiry will be made. In those instances where the native title party is divided or evinces an intention not to comply with directions, or indicates that it does not wish to cooperate for the holding of an inquiry, the Tribunal will exercise its power under section 148 to dismiss the application. In the Queensland context where directions are not set at the outset, the more usual approach will be the making of guillotine directions.
The springing Directions, having required the native title party to submit evidence by close of business on 10 August 2009 and 17 August 2009, were activated on those dates by the failure of the native title party to comply.

Decision

The expedited procedure objection applications specified in the attached Schedule are dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Deputy President

SCHEDULE – DETERMINATION [2009] NNTTA 97 (19 August 2009)

Tenement	Government Party Notification	Objection Application Lodged	Objection Application No.	Member Appointed	Grantee Party	Native Title Party & Application No.	Date of dismissal
EPM 16989	25/06/08	23/10/08	QO08/144	3/11/08	D’Aguilar Gold Limited	Janice Barnes, Jessie Diver, Deree King, Patrick Risher and Owen McEvoy on behalf of the Wangan and Jagalingou People QC04/6	17/08/09
EPM 16868	25/06/08	23/10/08	QO08/145	3/11/08	Waratah Coal Pty Ltd	Janice Barnes, Jessie Diver, Deree King, Patrick Risher and Owen McEvoy on behalf of the Wangan and Jagalingou People QC04/6	10/08/09
EPM 16872	25/06/08	23/10/08	QO08/146	3/11/08	Waratah Coal Pty Ltd	Janice Barnes, Jessie Diver, Deree King, Patrick Risher and Owen McEvoy on behalf of the Wangan and Jagalingou People QC04/6	10/08/09
EPC 1210	20/08/08	22/12/08	QO08/188	8/01/09	Hancock Prospecting Pty Ltd	Janice Barnes, Jessie Diver, Deree King, Patrick Risher and Owen McEvoy on behalf of the Wangan and Jagalingou People QC04/6	10/08/09
EPM 16874	20/08/08	22/12/08	QO08/189	8/01/09	Waratah Coal Pty Ltd	Janice Barnes, Jessie Diver, Deree King, Patrick Risher and Owen McEvoy on behalf of the Wangan and Jagalingou People QC04/6	10/08/09