Judy Hughes on behalf of the Thalanyji People /Western Australia/Dragoman Pty Ltd

[2005] NNTTA 21

NATIONAL NATIVE TITLE TRIBUNAL

Judy Hughes on behalf of the Thalanyji People /Western Australia/Dragoman Pty Ltd, [2005] NNTTA 21 (8 April 2005)

Application No:         WO03/548

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

-and-

IN THE MATTER of an inquiry into an expedited procedure objection application

Judy Hughes on behalf of Thalanjyi People - WC99/45 (native title party)

-and-

The State of Western Australia (Government party)

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Dragoman Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  8 April 2005

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/Allarrow Pty Ltd; Coniston Pty Ltd, NNTT WO03/668 & WO03/764, [2004] NNTTA 43 (18 June 2004), Hon C J Sumner

Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266

Representative of the

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

Representative of the

grantee party:  Mr Dinko Burmas

Representative of the        

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 23 April 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/1193 (‘the proposed licence’) to Dragoman Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).

2. On 17 July 2003 Judy Hughes on behalf of the Thalanyji People – Native Title Claim No. WC99/45 registered on 7 February 2000 - (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence.

Relevant facts

1. The proposed licence comprises an area of 3.15 square kilometres, 147 kilometres south westerly of Pannawonica in the Shire of Ashburton, and is overlapped 100% by the Thalanyji registered native title claim.

2. The Tribunal initially made directions on 11 August 2003 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 affidavit on or before 22 December 2003. 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.

3. A number of preliminary conferences were convened between August 2003 and January 2004 at which the Tribunal was advised that parties were negotiating regarding the grant of the proposed licence.  On 15 January 2004 the representative for the native title party, Mr Jerome Frewen, advised that agreement had been reached and that the objection application would be withdrawn as soon as the first payment pursuant to that agreement had been made.  As a consequence of this information directions were vacated.  Between February and November 2004 a number of conferences were held to ascertain the progress of the matter and with little prospect of resolution the objection application was referred to a Directions Hearing before me on 10 December 2004.  The grantee party was unrepresented at this hearing and Mr Frewen advised that outstanding payments were still forthcoming therefore he had no instructions to withdraw the objection.  Accordingly I reset directions for the conduct of the Inquiry, requiring native title party compliance on or before 11 March 2005.  These directions were issued in writing to all parties and Mr Frewen was again reminded of the native title party’s due date for compliance by email on 28 January 2005.

4. The Government party has complied with directions and in the absence of submissions from the grantee party I infer that it intends to rely on those documents.  No native title party contentions or evidence has been forthcoming to date.

5. On 18 March 2005 I convened a Listing Hearing at which neither the native title party nor the grantee party was represented.  Because of parties’ non-attendance I directed that the Tribunal write to the grantee party representative, Mr Dinko Burmas, advising him that a further adjourned Listing Hearing would be convened on 8 April 2005 and that non-attendance on the part of the grantee party would result in the matter being referred to the non-participating grantee party list.  This correspondence, which was copied to all parties, further explained the consequences of referral to the non-participating grantee party list (potential delays to the grant of the proposed licence) and the possible consequences of non-compliance with directions by the native title party.

6. The native title party was unrepresented at the adjourned Listing Hearing of 8 April 2005 despite written notification of the date on 21 March 2005 and 5 April 2005, and no submissions have been received. The Government party supported by the grantee party made application to dismiss the objection application pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party.

7. This matter has been in the system for a considerable period of time since the objection document was lodged on 17 July 2003 and while the Tribunal has been advised that an agreement has been executed between the native title party and the grantee party, it has been clear to the native title party since at least 20 October 2004 that there was a serious dispute over certain terms in that agreement that made it likely that the matter could only be determined by way of an Inquiry.  The native title party has known of the reset dates for compliance since 10 December 2004 and appears to have made no effort to comply despite having been informed of the possible consequences of a failure to comply.

8. In recent times I have dismissed 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 (see for example, 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 that matter and others I applied the principles enunciated by Member Sosso in Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at para [13]) on the use of the power to dismiss an objection application under s 148(b) of the Act for failure to comply with the Tribunal’s directions and do so again here. While earlier delay in proceeding with the objection was caused by negotiations and the supposed existence of an agreement, no explanation for the failure to comply since 10 December 2004 has been given. The failure is entirely due to lack of action by the native title party. A native title party must be prepared to prosecute an objection application from the time the that application is lodged, and the Thalanyji native title party has had sufficient notice of dates for compliance in this matter but has chosen to neither submit contentions and evidence nor seek an extension of time in which to do so.

Decision

1. The objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
8 April 2005