Judy Hughes on behalf of Thalanyji/Western Australia/Regent Resources Limited; Ochre Resources Ltd
[2006] NNTTA 18
•23 February 2006
NATIONAL NATIVE TITLE TRIBUNAL
Judy Hughes on behalf of Thalanyji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, [2006] NNTTA 18 (23 February 2006)
Application Nos: WO05/41 WO05/567
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection applications
Judy Hughes on behalf of Thalanyji – WC99/45 (native title party)
-and-
The State of Western Australia (Government party)
-and-
Regent Resources Limited (grantee party) (WO05/41)
-and-
Ochre Resources Ltd (grantee party) (WO05/567)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 23 February 2006
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to proceed with applications – failure to comply with directions – objection applications dismissed.
Legislation:Native Title Act 1993 (Cth) s 148(b)
Cases:Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, NNTT WO05/5 [2005] NNTTA 59 (23 August 2005), Hon C J Sumner
Representative of the
native title party: Mr Jerome Frewen, Desert Management Pty Ltd
Representative of the
grantee party: Mr Mathew Longworth, Heron Resources Ltd
Representatives of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS
Background
On 12 January 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences E08/1458 and E08/1465 to Regent Resources Ltd, and included in the notice a statement that the Government party considered that the grants attracted the expedited procedure.
On 7 September 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E08/1524 to Ochre Resources Ltd, and included in the notice a statement that the Government party considered that the grant attracted the expedited procedure. The three exploration licences will henceforth be collectively referred to as the proposed licences.
Regent Resources Ltd and Ochre Resources Ltd are wholly owned subsidiaries of Heron Resources Ltd. Consequently, Heron Resources Ltd is effectively the sole grantee for the proposed licences and will henceforth be referred to as the grantee party.
On 3 February 2005 and 16 September 2005, Judy Hughes on behalf of Thalanyji – Native Title Claim No. WC99/45 registered on 7 February 2000 (‘the native title party’) lodged expedited procedure objection applications with the Tribunal in relation to the proposed licences (designated WO05/41 (E08/1458 and E08/1465) and WO05/567 (E08/1524) respectively).
The area, location and extent to which the proposed licences are overlapped by the native title party are as follows:
E08/1458 – 222.79 square kilometres, 31 kilometres south westerly of Onslow in the Shire of Ashburton – 100% overlap;
E08/1465 – 226.31 square kilometres, 26 kilometres south westerly of Onslow in the Shire of Ashburton – 100% overlap;
E08/1524 – 222.95 square kilometres, 30 kilometres easterly of Onslow in the Shire of Ashburton – 41.56% overlap.
Relevant Facts
The Tribunal made directions on 22 February 2005 in relation to WO05/41 for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 5 September 2005. Similar directions were set in relation to WO05/567 on 30 September 2005, requiring native title party compliance by 8 May 2006. The directions contain a statement that an objection may be dismissed pursuant to s 148(b) of the Act if the objector fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal.
A preliminary conference was convened by the Tribunal in relation to WO05/41 on 8 March 2005, at which the representative for the grantee party, Mr Mathew Longworth, indicated that the grantee was prepared to attempt to negotiate an agreement with the native title party. At the adjourned preliminary conference of 27 July 2005 Mr Longworth advised that his client wished to rely on a modified version of the Regional Standard Heritage Agreement (RSHA) for the Pilbara region, which is considered by the Government party to be sufficient indication of the grantee’s positive attitude towards heritage protection. Directions were amended on two subsequent occasions with the agreement of parties to permit time for further negotiation, native title party compliance ultimately being required on or before 2 December 2005.
On 1 November 2005 a preliminary conference in relation to WO05/567 was held, at which time Mr Longworth requested that this matter progress in tandem with WO05/41. A further conference in relation to both matters was convened on 16 November 2005, during which Mr Longworth advised that he had been unable to obtain clear instructions from his client and, as a result, requested a further amendment to directions. Subsequent to the conference Mr Frewen requested by email that compliance be extended to a date after March 2006 taking into account upcoming Thalanyji Law Business and the consequent unavailability of the native title party to meet compliance deadlines.
I considered the submission that the native title party’s involvement in Law Business represents an impediment to compliance and the other parties’ responses. The Tribunal accepts that accommodation can be made for legitimate claims of the native title party for particular traditional or cultural activities. However, in this case the dates proposed by the native title party would have allowed a further four months in which it might comply, and that compliance for WO05/41 at least had initially been due some months before Law Business commenced. It is incumbent upon the native title party to be prepared and able to prosecute its own objection from the time that application is lodged.
On 5 December 2005 Mr Longworth advised the Tribunal and all parties by email that his instructions were now to proceed to Inquiry on the basis that agreement could not be reached. In accordance with current Tribunal practice to bring compliance dates forward to eliminate the standard 16 week negotiating period in matters such as WO05/567 where it is clear from the outset that agreement cannot be reached, I approved on 7 December 2005 the compliance amendment request made by Mr Longworth on 16 November 2005, requiring native title party compliance for both matters on or before 13 February 2006. Parties were advised in writing of these dates and of the date for the Listing Hearing on 13 December 2005.
On 14 December 2005 Mr Frewen reiterated in writing that compliance prior to late March 2006 would not be achievable, and on 19 December 2005 Mr Longworth responded advising that the grantee would agree to a further extension of time to late February 2006, but not to late March as proposed by the native title party. No response or counter proposal has been received from Mr Frewen despite an email from the Tribunal case officer on 12 January 2006 requesting a response in relation to the grantee’s offer, and reminding parties of the date of the Listing Hearing
The Government party has complied with amended directions and I infer that the grantee party will rely on those documents. No submissions from the native title party have been forthcoming to date.
On 23 February 2006 I convened a Listing Hearing at which the Government party supported by the grantee party made an application to dismiss the objection application pursuant to s 148(b) of the Act on the basis of a failure to proceed with the application and non-compliance with the Tribunal’s directions by the native title party. Mr Frewen was not in attendance and requested prior to the hearing that it be adjourned for one week because of other commitments. The Government party supported by the grantee party opposed this request on the basis that nothing would be achieved by an adjournment in that based on past practice Mr Frewen may not attend anyhow and if he did, would once again seek an extension of time to comply because his clients are occupied with Law business. I agreed with this submission and refused the adjournment. Mr Frewen has been aware of the date of the Listing Hearing since 13 December 2005 and of the exact time since 20 February 2006. No reason beyond other commitments was given for his non-attendance and more importantly no specific notice of what submission he wished to make at the adjourned hearing was given.
It has been clear to the native title party since 5 December 2005 that there was no prospect of a mutually agreed outcome. I find that the native title party has failed within a reasonable time to proceed with the applications and to comply with the Tribunal’s directions having submitted no statements of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply. In making this decision I adopt relevant findings in Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, NNTT WO05/5 [2005] NNTTA 59 (23 August 2005), Hon C J Sumner at [12] including that the Tribunal must deal with expedited procedure objection applications as speedily as possible.
I also note for the record that the Government party has proposed extra conditions to be imposed on the grant of the proposed licences, requiring that the grantee party, if so requested by the Thalanyji People within ninety days of the grant of the proposed licences, shall within thirty days of the request execute the RSHA endorsed by the Yamatji Land and Sea Council in favour of the Thalanyji People in respect of the area covered by the proposed licences. If acted upon, these agreements should assist to ensure that sites of particular significance to the Thalanyji People are protected.
Decision
Expedited procedure objection applications WO05/41 and WO05/567 are dismissed pursuant to s 148(b) of the Native Title Act 1993.
Hon C J Sumner
Deputy President
23 February 2006
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