June Ashwin & Ors on behalf of the Wutha People/Contact Uranium Ltd/ Western Australia

[2008] NNTTA 92

NATIONAL NATIVE TITLE TRIBUNAL

June Ashwin & Ors on behalf of the Wutha People/Contact Uranium Ltd/ Western Australia, [2008] NNTTA 92 ( 17 July 2008)

Application No:        WF 08/16

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

and

IN THE MATTER of an inquiry into a future act determination application

June Ashwin, Geoffrey Alfred Ashwin, Ralph Edward Ashwin & Ors on behalf of the Wutha People  (native title party)

and

Contact Uranium Limited  (grantee party)

and

The State of Western Australia  (government party)

DECISION ON APPLICATION TO DISMISS APPLICATION UNDER s148

Tribunal:       Mr John Sosso 

Place:             Brisbane
Date:              17 July 2008

Hearing Dates:                  29 April 2008; 6 June 2008.

Representatives:                

Grantee party:                   Ms. Linda Skender, Tenement Administration Services

Native title party:              Mr Ron Harrington-Smith, Wutha Heritage Co-ordinator

Government party:           Ms Janice Goodwin, Department of Industry and Resources

Mr Domhnall McCloskey, State Solicitor’s Office

Catchwords:   Native title – future act – proposed grant of Prospecting Licences – future act determination application – application for dismissal of application under s 148 – application for dismissal not upheld

Legislation:    Native Title Act 1993 (Cth) – ss. 35, 36, 36A, 75, 148

Cases:            Teelow v Page (2001) 166 FLR 266

Velickovic on behalf of the Widji People/Western Australia/Allarrow Pty Ltd WO03/764 [2004] NNTTA 43 (18 June 2004) Deputy President Sumner

Velickovic on behalf of the Widji People/Western Australia/Saunders WO05/564 [2006] NNTTA 76 (15 June 2006) Deputy President Sumner

REASONS FOR DECISION NOT TO DISMISS FUTURE ACT DETERMINATION APPLICATION

1. In this matter, pursuant to s.148(b) of the Native Title Act 1993, the native title party has made application for the dismissal of a future act determination application lodged by the grantee party. Section 148 provides as follows:

   “The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

   (a) the Tribunal is satisfied that it is not entitled to deal with the application; or

   (b)  the applicant fails within a reasonable time to proceed with the application or comply with a direction by the Tribunal in relation to the application.”

2. On 29 April 2008 I made Directions for this inquiry. The native title party was required to lodge its contentions and supporting documentation in support of its good faith challenge on or before 13 May 2008, with the government and grantee parties to comply by 20 May 2008. On 13 May 2008 the native title party requested that the Directions be amended to provide a two weeks extension of time to provide its statement of contentions and supporting documentary material in relation to its contention that both the government and grantee parties failed to negotiate in good faith as required by s.31 of the Act. On 15 May 2008 the Tribunal issued amended Directions that extended time for compliance as requested by the native title party.

3. On 6 June 2008 I convened a further Directions Hearing. The convening of this hearing was required because the native title party had not complied with its obligation to lodge contentions and supporting documents in support of its challenge to the jurisdiction of the Tribunal. Neither the government or grantee parties made submissions seeking any form of relief against the native title party, nor did either at any stage oppose the granting of extensions of time for the native title party to comply. At the 6 June 2008 Directions Hearing, the Tribunal again amended the Directions by extending the time for compliance by the native title party to 27 June 2008. The other parties were likewise required to supply contentions, with the government and grantee parties to lodge their contentions by 4 July 2008.

4. The native title party lodged its contentions and supporting documentation on 26 June 2008 and the government party did likewise on 7 July 2008 having sought comment from the Tribunal and other parties as to whether a late submission was acceptable. On 8 July 2008 Mr. Paul Tolcon of Mony de Kerloy Barristers and Solicitors, the legal representative for the native title party, wrote to the Tribunal as follows:

   “We refer to previous correspondence and in particular to the telephone conversation with the writer of earlier today.

   Further to the said telephone conversation, we confirm that we are yet to receive the grantee party’s Statement of Contentions and supporting documentary evidence in relation to whether it has negotiated in good faith in accordance with direction 2 which was to be filed and served on or before 5 June 2008 (sic).

   We are instructed that as it is the grantee party’s section 35 application and indeed, such directions to their own application have not been complied with, that we seek that the tribunal immediately take steps to dismiss the application failing which, we seek a direction that should the grantee party not file its contentions by close of business Thursday 10 July 2008, that the matter shall be dismissed.”

5. Mr Domhnall McCloskey of the State Solicitor’s Office on behalf of the government party provided useful written submissions on 9 July 2008. Of particular relevance were the following observations:

   “As to the second limb of s148(b) of the NTA as it applies to this case, the GVP says the Tribunal must consider whether the failure of the GP to comply with Direction 2, i.e. to comply with the milestone provided by that direction as to when the GP was required to lodge and serve it’s contentions as to the ‘s36(2) NTA/good faith issues’ and any supporting documents, means this s35 application should be struck out, having due regard to the serious nature of any such order to that effect. Further, the factors the Tribunal may wish to consider in determining this question include the following, that the determination of the matter has been delayed for a significant period already but not always by any act or omission of the GP; the delay caused by this breach/period of non-compliance is only a matter of days so far and may be able to be quickly remedied by the GP; any exculpatory material or information yet to be provided by the GP and it’s representatives to excuse its non-compliance with Direction 2 to date; and/or any information or advice from the GP that shows it can comply with that direction as soon as possible, or as otherwise required by the Tribunal.”

6. Later that day Ms. Linda Skender, Senior Mining Tenement Manager with Tenement Administration Services Pty Ltd (“TAS”), made the following submissions by email on behalf of the grantee party:

   “The reasons for lateness in TAS preparing the documents, is the enormous administrative disruption TAS has suffered through the illness of Lynton and the departure of a key person (Raoul Braithwaite) responsible for Native Title matters.

   During the year TAS has had staff members leave on exceptionally short notice, namely due to the current industry boom, regrettably, leaving TAS totally unable to carry out certain functions for past months and consequently this deadline was missed.

   As a very small organization, the disruption caused by the sudden loss of staff, has been extremely traumatic for TAS.

   TAS is confident that newly recruited staff members will be able to work strictly to the timetables imposed by Government Departments and that systems have now been put in place which will rely less on individuals.

   Since TAS took on the Native title matters concerning Prospecting Licences 38/3277 – 3279, TAS has at all times availed themselves to reach settlement, and in interests are (sic) cordial relations has agreed with NTP requests for extra time.

   In light of the above, TAS respectfully request an extension of three 3 weeks be granted to lodge the necessary documents and resolve these ongoing matters.”

Ms. Skender had also notified the Tribunal and the parties by separate email on the same day that Mr Lynton Downe was no longer representing the grantee party in this matter and that she, assisted by Ms. Angela Blackmore, would be undertaking this role.

1. By letter dated 10 July 2008 Mr. McCloskey, on behalf of the government party, made the following observation about the submissions of the grantee party:

   “… while the GVP has sympathy for the GP concerning the matters set out in the e-mail by Ms Skender, the GVP does not wish to make any submission as to the same other than that the weight to be given to the explanation provided by the representative for the GP for their client’s failure to comply with Direction 2, or the acceptability (if that be the correct term) of the same, are matters for the Tribunal –  though the GVP recognises the NTP may have an interest in commenting more fully on the issue.”

2. Finally, on 10 July 2008 Mr. Tolcon, on behalf of the native title party, made the following submission: “… we confirm that we are still yet to receive anything from the Grantee Party. Accordingly, we are instructed to seek that the application be dismissed.”

3. Unlike many other administrative tribunals and courts, the National Native Title Tribunal operates in a legislative environment that explicitly places primacy on speedy outcomes. Once a negotiation party (s.30A) makes a future act determination application pursuant to sections 35 and 75, the Tribunal is required to make a section 38 determination as quickly as is appropriate. First, pursuant to s.36(4), at any time later than four months after the making of a future act determination application which has not been resolved, the Commonwealth Attorney-General can give written notice to the Tribunal requesting it to make a determination within a period ending later than six months after the making of the future act determination application. Second, if the Tribunal has not made a section 38 determination within six months after a future act determination is made, the Commonwealth Attorney-General must be given written advice of that fact, the reason for the determination not having been made and an estimate as to when a determination is likely to be made. Thirdly, s.36A sets out in detail how the Commonwealth Attorney-General can intervene and make a future act determination if the Tribunal has delayed making a determination. Consequently, the legislative scheme envisages that, unless a section 38 determination is made “… within a period that is reasonable having regard to all of the circumstances” (s.36A(2)(a)) the Attorney-General is empowered to intervene and make a Ministerial determination. The clear implication is that, unless there are compelling reasons to the contrary, the Tribunal should aim to finally dispose of future act determination applications within six months of their lodgment.

[10] Most Tribunal decisions on s.148(b) applications have been in the context of expedited procedure objection application inquiries. The principles which broadly guide the Tribunal in determining whether to dismiss an application pursuant to s.148(b) in those circumstances was outlined in Teelow v Page (2001) 166 FLR 266 (at 269) as follows:

“The exercise of the discretion vested in the Tribunal by section 148(b) to dismiss an application on the basis that the applicant has failed to comply with a direction of the Tribunal should be guided by the following principles:

(a)   the exercise of the discretion should be informed by the object of the expedited procedure provisions of the Act, namely that the parties and the Tribunal are required to proceed expeditiously with a view to avoiding delays, expense and legal technicalities, and that non-compliance of Tribunal directions potentially warrants, as a matter of principle, the imposition of the sanction set out in section 148;

(b)  directions are made to achieve these objectives and, accordingly, non-compliance enlivens the power vested in the Tribunal pursuant to section 148;

(c)   whether the discretion vested in the Tribunal should be exercised, though, is dependent on a range of factors and circumstances that are not possible of being wholly outlined.  However, one important factor, is that that the right to negotiate is a valuable right that should not be lightly dispensed with, and that the Act should be interpreted in a beneficial manner for native title holders.  That aside, the discretion in section 148 is unfettered and the exercise or non-exercise of the discretion depends on all the circumstances of each case.  Amongst other matters, and by no means limiting them, the Tribunal could consider:

(i)whether the failure to comply was as a result of the actions of the objectors or their representative, or due to some other cause;

(ii)whether there has been some reasonable explanation proffered for non-compliance, or rather that no explanation is given to the Tribunal. While the absence of an explanation may well prove fatal, the giving of an explanation does not of itself prevent the exercise of the discretion to strike out;

(iii)whether the failure of the applicant to comply with Tribunal directions has resulted in prejudice to other parties, and if so, the nature of that prejudice;

(iv)     the history of the proceedings;

(v)the previous conduct of the applicant, such as previous failures by the applicant to comply with directions of the Tribunal;

(vi)whether the expedited procedure inquiry itself raises novel issues, or whether the inquiry is part of a series of inquiries involving the same native title party such that failure to meet direction timelines is explicable and not unreasonable;

(vii)the consequences of dismissal, particularly if the failure to comply has occurred by oversight or factors outside the control of the applicant.”

The Tribunal has subsequently applied the above principles when considering the exercise of s.148(b) – Velickovic on behalf of the Widji People/Western Australia/Allarrow Pty Ltd & Anor [2004] NNTTA 43 and Velickovic on behalf of the Widji People/Western Australia/Saunders [2006] NNTTA 76.

[11]   In determining whether to exercise the dismissal power in the context of a future act determination application, the following principles may be of relevance:

(a)  the exercise of the discretion should be informed by the statutory scheme governing future act determination application inquiries, namely a clear objective that they be finalised, where practicable, within 6 months of the lodging of the Form 5;

(b) directions are made to facilitate this objective, and accordingly, non-compliance enlivens the power vested in the Tribunal by section 148;

(c)  the consequences of the exercise of the dismissal power are severe, and should be used sparingly and only in cases where it is manifestly clear that it is appropriate to do so;

(d)  the power should not be used unless and until the non-complying party has been given an opportunity to explain the basis for non-compliance;

(e)   the previous conduct by the non-complying party, particularly whether that party has a history of non-compliance;

(f)  the previous conduct by other parties, in particular whether any other party has likewise been non-compliant;

(g)  the prejudice caused by the non-compliance to the other parties;

(h) the nature of the non-compliance, in particular if the non-compliance occurred by oversight or factors outside the control of the non-complying party;

(i)   the consequences of the non-compliance for the Tribunal still meeting the objective of finalising the inquiry within the six month time period previously discussed; and

(j)   whether the non-complying party has indicated that it will comply in the future with Directions made, or whether no such undertakings are given.

[12] In this matter the non-compliance by the grantee party has been explained. The cause of the non-compliance resulted from factors outside of its control. Further, the grantee party has undertaken to comply in the future with Tribunal Directions, and the time extension it has sought is not unreasonable in the circumstances. The grantee party did not object to extensions of time being afforded to the native title party when it was non-compliant, and its conduct to date has been reasonable. In all of these circumstances the Tribunal is satisfied that it should not exercise its discretion under section 148. There is no evidence of persistent delays by the grantee party, of prejudice to the other parties or of a pattern of conduct by the grantee party warranting the exercise of the statutory strike out discretion.

Determination

[13] The application by the native title party that the future act determination application of the grantee party be dismissed pursuant to section 148, is not upheld.

John Sosso

Deputy President