Judy Hughes on behalf of Thalanyji People/Western Australia/Aurora Gold (WA) Pty Ltd

Case •

[2004] NNTTA 69

•

22 July 2004

NATIONAL NATIVE TITLE TRIBUNAL

Judy Hughes on behalf of Thalanyji People/Western Australia/Aurora Gold (WA) Pty Ltd, [2004] NNTTA 69 (22 July 2004)

Application No:        WO03/898

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

Judy Hughes on behalf of Thalanyji People – WC99/45 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Aurora Gold (WA) Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:     20 July 2004
Date of reasons:        22 July 2004

Catchwords:             Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure within a reasonable time to proceed with objection application – failure to comply with Directions – objection application dismissed.

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

Cases:Leonne Velickovic on behalf of Widji People/Western Australia/Mat Mining Pty Ltd, NNTT WO03/767, [2004] NNTTA 35 (20 May 2004), The Hon EM Franklyn QC

Leonne Velickovic on behalf of Widji People/Western Australia/Allarrow Pty Ltd; Coniston Pty Ltd, NNTT WO03/668 & WO03/764, [2004] NNTTA 43 (18 June 2004), Hon C J Sumner

Representative of the

native title party:            Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the

grantee party:                 Mr John Clarke , Wanati Pty Ltd.  

Representative of the
Government party:        Mr Clyde Lannan, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

  1. On 30 July 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E08/1257 and E08/1258 to Aurora Gold (WA) Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

  2. Judy Hughes on behalf of the Thalanyji People (‘the native title party’) lodged an expedited procedure objection application regarding the proposed licences with the Tribunal on 24 October 2003.   

Relevant Facts

  1. The area, location, and percentage to which the grantee party’s exploration licences are overlapped by the registered native title claim is as follows:

    ·     E08/1257 – 222.44km2, 43 km south east of Onslow, 87.5% overlap

    ·     E08/1258 – 222.28km2, 43 km south east of Onslow, 100% overlap

  2. The Tribunal initially made Directions for all parties to produce contentions and evidence for the conduct of the inquiry into this objection application on 12 November 2003.  The Direction in respect of the native title party was as follows:

    ‘(3)On or before 29 March 2004 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 it 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 indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal; and

    (c)a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.’

  3. The Tribunal convened a Status Conference into this matter on 10 March 2004, at which time the grantee party advised through its representative that it preferred to enter into the Standard Heritage Protection Agreement for the Pilbara region which if signed by the grantee party results in the Government party continuing to assert the expedited procedure in relation to the grant. A draft copy of this agreement had been forwarded to the native title party representative for consideration. The parties requested an amendment to Directions to allow the native title party representative time to consult with his clients and provide a detailed response to the grantee party. This request was subsequently approved and re-set native title party compliance to 30 April 2004. 

  4. The Government party complied with Directions initially set for this matter on 8 March 2004.

  5. At an adjourned Status Conference convened by the Tribunal on 7 April 2004, the native title party representative indicated that his clients would now be meeting in early May to consider the draft agreement presented by the grantee party.  On this basis the parties requested a further amendment to Directions, which was also approved and re-set native title party compliance to 31 May 2004.

  6. At a further adjourned Status Conference convened by the Tribunal on 26 May 2004, the grantee representative requested that this matter proceed to inquiry as a consequence of the breakdown of negotiations. Negotiations had failed as the grantee party still preferred to use the Standard Heritage Protection Agreement whilst the native title party preferred their alternative agreement.  A further amendment to Directions was sought by the parties to afford the native title party additional time to comply, which was again approved and re-set native title party compliance to 28 June 2004.

  7. On 31 May 2004, the Tribunal was advised that Mr Frewen would be travelling overseas until early July 2004, and therefore would be unable to take instructions from his clients.  The Government and grantee parties agreed to postpone further hearings on this matter until after Mr Frewen’s return from overseas. 

  8. On 2 July 2004 the Tribunal wrote to the native title party and all other parties in the following terms:

    As at 1 July 2004 (by which time the native title party was due to comply with the amended directions), no affidavit material has been submitted by or on behalf of the native title party in this matter. As pointed out in the Directions, under Section 148 (b) of the Native Title Act 1993, where a native title party fails to comply with a direction, the Tribunal may dismiss the application. 

    On 31 May 2004 you advised the Tribunal that you would be unavailable to take instructions from your clients between 14 June 2004 and 12 July 2004, inclusive. In consideration of this, Deputy President Sumner will convene a further adjourned Listing Hearing of this matter on 20 July 2004 (at a time to be advised). During this hearing he will take submissions from the parties on what, if any, further Directions should be made for the conduct of the inquiry or whether the objection application should be dismissed pursuant to Section 148(b) of the Native Title Act 1993. 

  9. No response was received by the Tribunal from the native title party addressing the issues raised this correspondence.

  10. At the adjourned Listing Hearing I convened on 20 July 2004, which Mr Frewen did not attend, the Government party submitted that the application should be dismissed pursuant to s. 148(b) of the Act on the grounds that the native title party has failed to comply with the Tribunal’s directions. This submission was supported by the grantee party representative.

  11. I have recently considered a number of objection matters where native title party compliance was an issue and where the Government and grantee parties requested dismissal of the objections.  In matters WO03/668 and WO03/764 for example, I dismissed the objections on the grounds that the native title party had failed within a reasonable time to proceed with its objections and to comply with the Tribunal’s directions (Leonne Velickovic on behalf of Widji People/Western Australia/Allarrow Pty Ltd; Coniston Pty Ltd, NNTT WO03/668 & WO03/764, [2004] NNTTA 43 (18 June 2004), Hon C J Sumner). In reaching this conclusion I also had regard to a decision to dismiss in similar circumstances in Leonne Velickovic on behalf of Widji People/Western Australia/Mat Mining Pty Ltd, NNTT WO03/767, [2004] NNTTA 35 (20 May 2004), The Hon EM Franklyn QC.

  12. In this matter, in accordance with the reasons outlined in the above decisions, I also find that the native title party has failed within a reasonable time to proceed with its objections and to comply with the Tribunal’s initial or amended Directions, having submitted no Statements of Contention or supporting evidence. The consequence of a failure to comply with Directions (i.e. the possibility of dismissal of the objection pursuant to s 148(b) of the Act) is stated in the standard directions sent out by the Tribunal. By letter dated 2 July 2004 the native title party’s attention was again drawn to the fact that it had not complied with the amended directions of 26 March 2004 and the possible consequences. I note that Mr Frewen on behalf of the native title party consented to the series of amended dates for compliance, with a final date set of 28 June 2004, but failed to comply.

  13. The only other matter I wish to observe is that WO03/898 was lodged on 24 October 2003, which is over 8 months ago.  This matter has, therefore, been in the system for a considerable time and one would have expected some steps to have been taken by the native title party to provide an evidentiary basis for their objection within that time.  Mr Frewen has not made any submissions in this respect and as far as I can ascertain nothing has been done to try to take even preliminary steps to collect relevant evidence to sustain the objection.

Decision

  1. Being satisfied that the applicant (native title party) in application WO03/898 failed within a reasonable time to proceed with its expedited procedure objection application and to comply with directions of the Tribunal, the objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993

Hon C J Sumner
Deputy President
22 July 2004

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