Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Saunders
[2006] NNTTA 76
•15 June 2006
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Saunders, [2006] NNTTA 76 (15 June 2006)
Application No: WO05/564
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Leonne Velickovic on behalf of Widji People – WC98/27 (native title party)
-and-
The State of Western Australia (Government party)
-and-
Frederick Saunders (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date of dismissal: 15 May 2006
Date of reasons: 15 June 2006
Catchwords: Native title – future acts – proposed grant of prospecting licences – expedited procedure objection application – failure to comply with directions – springing order dismissing expedited procedure objection application in event of non-compliance – objection application dismissed.
Legislation:Native Title Act 1993 (Cth) s 148(b)
Cases:David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL, NNTT WO99/836, [2000] NNTTA 333. (11 October 2000), Hon E M Franklyn QC
Dixon v Northern Territory of Australia, [2002] NNTTA 48; (2002) 169 FLR 103
Jack Hogan on behalf of the Waanyi Peoples and Roy Dixon on behalf of the Garawa People/Northern Territory/Hartz Range Mines Pty Ltd, NNTT DO02/23, DO02/26, [2002] NNTTA 112 (20 June 2002), Mr John Sosso
Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/185 and WO04/198, [2005] NNTTA 4 (28 February 2005), Hon C J Sumner
Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67
Northern Territory/Gabriel Hazelbane & Ors (Warai and Angwinmil)/Michael Page and Ors (Jawoyn)/Michael Daniel Teelow and Gary Anthony Clarke, NNTT DO02/97, DO02/98, [2003] NNTTA 8 (4 February 2003).
Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266
Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265
Representative of the
native title party: Mr Jerome Frewen, Desert Management Pty Ltd
Representative of the
grantee party: Ms Elizabeth Dobaj
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On 7 September 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licences P15/4347 and P15/4503 (‘the proposed licences’) to Frederick Saunders (‘the grantee party’) and included in the notice a statement that the Government party considered that the grant attracted the expedited procedure.
On 8 September 2005, Leonne Velickovic on behalf of the Widji People – Native Title Claim No. WC98/27 registered on 15 June 1998 – (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licences.
The area and location of the proposed licences, both of which are located in the Shire of Coolgardie, are as follows:
P15/4347 – 11.36 hectares, eight kilometres southerly of Coolgardie;
P15/4503 – 4.15 hectares, 21 kilometres north westerly of Widgiemooltha.
The registered claim of the native title party overlaps P15/4347 to an extent of 71.59 per cent, and entirely overlaps P15/4503.
The registered claim of the Central West Goldfields People (WC99/29) entirely overlaps each of the proposed licences and is therefore also accorded the status of native title party. However, the Central West Goldfields People did not lodge an expedited procedure objection in relation to either proposed licence prior to the closing date.
Relevant Facts
The Tribunal made directions on 30 September 2005 in the standard form 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 8 May 2006 (i.e. in accordance with the standard procedures a 16 week period from the closing date for objections was allowed for the native title party and grantee party to negotiate an agreement if they wished). 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.
On 18 October the grantee party, Mr Frederick Saunders, contacted a case officer at the Tribunal to advise that he had executed the Goldfields Regional Standard Heritage Agreement (‘RSHA’) in favour of the Central West Goldfields People (WC99/29), which is considered by the Government party to be sufficient indication of the grantee’s positive attitude towards heritage protection, and therefore wished to proceed directly to inquiry. Mr Saunders also advised that he had engaged Ms Elizabeth Dobaj to act as his representative in this matter from this time.
At a status conference on 27 October 2005 Ms Dobaj again advised the Tribunal that the grantee party wished to proceed to inquiry having executed the RSHA, and the Government party did not oppose this application. It was proposed to amend the directions for compliance to require Government party compliance on or before 13 February 2006 and native title party compliance on or before 20 February 2006. This would have been in accordance with Tribunal practice, where agreement is not possible, that compliance with directions be required of the Government party three weeks after the objection closing date (or three weeks after an inquiry has been requested in circumstances where the closing date has passed), and that compliance by the native title party follow one week after that (see Procedures under the Right to Negotiate Scheme – 27 January 2005 (paras 3.8.2, 3.9.3) website act/procedures and guidelines). The representative of the native title party, Mr Jerome Frewen, was not in attendance but was advised of the outcome in writing on 4 November 2005.
On 30 November 2005 a Tribunal case officer advised parties that Mr Frewen had opposed any shortening of the time for compliance with directions on the basis that the native title party would be engaged in cultural activities until approximately 1 March. He requested that these matters be adjourned until after that date and that at least four weeks be allowed for any compliance that may arise after that time. Ms Dobaj and the representative of the Government party did not oppose this request and on this basis I approved a variation to directions, requiring Government compliance on or before 4 April 2006 and native title party compliance on or before 11 April 2006. Parties were advised of my decision in writing on 3 February 2006.
On 21 April 2006 I convened a listing hearing at which time the Government party had only partially complied with the Tribunal’s directions and neither the native title party nor grantee party had done so. The Government party and grantee party were represented at the hearing but the native title party, despite being made aware of the date of the hearing, did not participate. The Tribunal decided that the directions should be re-set giving the Government party further time to comply with the directions and for consequential adjustments to be made to the times for compliance by the other parties.
The Tribunal proposed to make directions requiring Government compliance on or before 1 May 2006 and native title party compliance on or before 15 May 2006. In addition, I raised the possibility of imposing a ‘springing order’ such that if the native title party did not comply by the due date, the objection application would be dismissed automatically.
On 21 April 2006, the Tribunal wrote to all parties giving notice of the proposed dates for compliance and seeking submissions on whether a springing order should be imposed because of the native title party’s history of non-compliance with Tribunal directions. A draft of the proposed springing order was also sent to the parties. The Tribunal drew the parties’ attention to the following cases (esp Dixon at para [24]) where a springing order had been made or considered:
Dixon v Northern Territory of Australia, NNTT DO01/140, DO02/16, DO02/17, DO02/20, DO02/27, [2002] NNTTA 48; (2002) 169 FLR 103 (15 April 2002) – esp paras 23, 24, 25.
Jack Hogan on behalf of the Waanyi Peoples and Roy Dixon on behalf of the Garawa People/Northern Territory/Hartz Range Mines Pty Ltd, NNTT DO02/23, DO02/26, [2002] NNTTA 112 (20 June 2002).
Northern Territory/Gabriel Hazelbane & Ors (Warai and Angwinmil)/Michael Page and Ors (Jawoyn)/Michael Daniel Teelow and Gary Anthony Clarke, NNTT DO02/97, DO02/98, [2003] NNTTA 8 (4 February 2003).
The Government party provided a submission in support of a springing order based on the principles outlined in Dixon (at [24]) and because the native title party ‘has displayed a persistent pattern of non-compliance with directions of the Tribunal, often without proper excuse.’ It further submitted that springing orders should be imposed in all objection matters involving the Widji native title party. No submissions were made by the native title party or grantee party.
On 1 May 2006, I remade the directions and included a springing order in the following terms:
‘(3)Should the native title party not comply with Direction (2) by close of business 15 May 2006, the Tribunal pursuant to s 148(b) of the Native Title Act 1993 (Cth) shall forthwith dismiss the expedited procedure objection application WO05/564.’
The amended directions were sent to all parties advising that the effect of Direction (3) was that the objection would be automatically dismissed without hearing the parties further if the native title party did not comply by the specified date (i.e. 15 May 2006). The directions were not complied with by the native title party and the springing order operated to automatically dismiss the objection on 15 May 2006.
The following statistics prepared by the Tribunal support findings which the Tribunal has previously made that the native title party commonly fails to comply with the Tribunal’s directions.
WIDJI EXPEDITED PROCEDURE OBJECTION STATISTICS TO 27 APRIL 2006
Total number of Determinations/Decisions
2000 13
2001 7
2003 8
2004 53
2005 42
2006 30
Total 154
Section s 148(b) dismissals as a percentage of total objections
Secton 148(b) Dismissals Percentage of Non-Section 148(b)
Section 148(b) Matters
Dismissals (%)
2000 1 7.69 12
2001 2 28.57 5
2003 - 8
2004 49 92.45 4
2005 37 88.09 6
2006 30 100 -
Total 119 77.27 35
Number of objections with a partical compliance (i.e. contentions only)
7 of 154
Number of objections with full compliance (contentions and affidavits)
11 of 154
Consent Determinations – expedited procedure not attracted
17 of 154
Rate of s 148(b) dismissals excluding Consent Determinations
119 s 148(b) dismissals in a total of 137 (154 less 17) - 86.86%
A review of Widji objection dismissal decisions reveals that the native title party has a practice of lodging objections in the hope of negotiating an agreement with a grantee party for heritage protection. If agreement is reached then the objection is withdrawn. The practice of allowing time to negotiate an agreement has been sanctioned by the Tribunal in all objection matters in that a 16 week period is allowed if the native title party and grantee party wish to negotiate about an agreement. Withdrawal of an objection following agreement is now the most common way of resolving objections. However, where no agreement is possible the Tribunal will make directions for an early inquiry.
Despite the Tribunal’s approach of encouraging agreement by allowing a period of negotiation it is clear that if an inquiry becomes inevitable, contentions and evidence need to be produced by the parties to enable the Tribunal to properly consider the issues arising under s 237 of the Act. In David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL, NNTT WO99/836, [2000] NNTTA 333. (11 October 2000), Deputy President Franklyn QC set out the position:
‘The factual circumstances relevant to an expedited procedure determination are found in s 237 of the Act. The objection alleges the existence of the relevant factual circumstances which, so far as s 237(a) and (b) at least are concerned, are or should be within the knowledge of the objectors. That does not give rise to an onus of proof but the section does require evidence of the existence of the relevant factual circumstances when an objection relying on the same is made. That is to say there must be evidence of the fact of the carrying on of community or social activities (said to be likely to be interfered with) of the persons who are the holders of native title in relation to the relevant land and evidence of the existence of areas or sites of particular significance in accordance with their tradition to the persons who are the holders of native title (said to be likely to be interfered with). This, in my opinion, is apparent from the provisions of ss 237 and 76 of the Act and the required content of Form 4 (the objection form). It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the Native Title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection. This would enable the initial directions to be set with a time frame reasonably capable of being complied with.’
Although aware of what is required, the Widji native title party in most cases have adopted the practice (as revealed by the above statistics) of failing to comply if an agreement is not reached rather than taking steps to support its objection by complying with the Tribunal’s directions. The Regional Standard Heritage Agreement which has been negotiated by the Government party, native title representative bodies and peak industry groups is not acceptable to them and they are only prepared to countenance agreement based on their alternative heritage agreement. In recent times most grantee parties have not found the Widji alternative agreement acceptable and an inquiry has become inevitable. The native title party then fails to comply and the objection is dismissed (see for example Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/185 and WO04/198, [2005] NNTTA 4 (28 February 2005), Hon C J Sumner at [12]-[13]).
In dismissing previous Widji objections the Tribunal applied the principles set out by the Tribunal (Member Sosso) in Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at [10]-[18]):
‘[10] There have been numerous Tribunal determinations on the operation of section 148(b), however it is worth highlighting one matter. The discretion given to the Tribunal in section 148 is drafted in extremely broad terms. It is impossible to predict the type of circumstances which would activate its operation, and it would be sensible only to say that the breadth of drafting indicates that its scope is in no ways narrow or of limited operation.
[11] When dealing with provisions somewhat similar to section 148(b) the Courts have indicated that one situation warranting strike out is where the history of non-compliance by a party is such as to indicate either an inability or unwillingness to cooperate with the Court and the other parties in having the matter heard. Reference can be made to the comments of Wilcox and Gummow JJ in Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 396.
[12] Until recently the approach the Courts adopted was derived from the principles set out by the House of Lords in Birkett v James [1978] AC 297, to the effect that a strike out should not occur unless there had been intentional and contumelious delay in the prosecution of an action or in the obedience to an order of the court, or that a defendant would suffer prejudice were the action be allowed to continue – see Lord Diplock at 318. However over the past few years the Courts in both Australia and England have held that if there has been a persistent failure to comply with the rules (or orders) then an action could be struck out even if there was no evidence of prejudice to another party or that a fair trial was still possible – see eg. Cooper v Hopgood & Ganim [1999] 2 Qd R 113 and Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 2 All ER 181.
[13] These decisions are not directly applicable to expedited procedure inquiries, but some general guidance can be gleaned from them. 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.
[14] Another factor to be taken into account in this matter is the absence of a “springing” or “guillotine” direction. If such a springing direction has been made, then in the absence of good reasons to the contrary, there would be a presumption that the Tribunal would exercise its discretion under section 148. Conversely a springing or guillotine direction does not deprive the Tribunal of its discretion not to dismiss, and if good reasons are advanced the Tribunal may determine not to exercise its discretion – FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268.
[15] In this matter the failure of the Tribunal to make a springing direction, despite the contentions of the Northern Territory, is a factor that I have taken into account.
[16] The failure of the native title party to comply with the directions made by Deputy President Sumner is not denied. The fact of non-compliance of itself necessitates a consideration of section 148, especially as the grantee party made a formal submission to that effect.
[17] The power in section 148 is discretionary. The implications of its exercise are severe. It is a power that should be used sparingly and only in cases where it is manifestly clear that it is appropriate to do so. In this matter the failure to comply has been explained. There has not been a history of non-compliance. The grantee party has not been significantly prejudiced. The government party (the Northern Territory) has not sought dismissal. This is one of a series of inquiries that raise complex and potentially novel issues. The burden placed on both the native title party and the government party in these initial inquiries is significant. It would be sensible and appropriate to give the parties some leeway.
[18] The Tribunal is not satisfied that it should exercise its discretion under section 148. There is no evidence of persistent delays, of prejudice or of conduct warranting the exercise of the statutory strike out discretion.’
The Tribunal (Member Sosso) has previously considered the circumstances which give rise to the use of springing orders in Dixon v Northern Territory of Australia, NNTT DO01/140, DO02/16, DO02/17, DO02/20, DO02/27, [2002] NNTTA 48; (2002) 169 FLR 103 at [24]-[25]:
‘[24] The Tribunal from time to time makes “springing”, “guillotine” or “preemptory” orders. 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 Ltd [1993] 1 All ER 630.
[25] A springing direction must be clear and unambiguous. The party against whom it is made should not be in any doubt of the action required and the consequences of failing to comply. The event that will activate the direction also must be beyond doubt – Stubbs v ES&A Bank Ltd [1959] Qd R 158 and Freeman v Rabinov [1981] VR 539.’
Applying the principles in Teelow and Dixon I am satisfied that a springing order which was self-executing dismissing the objection pursuant to s 148(b) of the Act was justified in this case. I am satisfied that the native title party persistently fails to comply with the Tribunal’s directions and failure to comply has not resulted from the action of someone else. Further, this failure is now part of a deliberate policy of lodging objections to see if agreement about heritage protection acceptable to them can be negotiated. In general no reasonable explanation of the failure to comply has been given in previous matters. In the present matter, the native title party did not attend some hearings, did not make submissions on the imposition of the springing order, did not provide any reason for their non-compliance and did not seek further time to comply. There is no evidence of actual prejudice to the other parties but in a general sense the right to negotiate provisions are supposed to operate in a timely manner (Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [84]-[85]; Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265 at 278) and delays have the effect of slowing down the grant of prospecting or exploration licences. A grantee party has a legitimate interest in seeing particular licences granted subject to the procedures which protect native title rights and interests and the Government party a general interest in making ground available and maintaining investment in mineral exploration. The pattern of non-compliance also supports the imposing of the springing order and all parties were specifically informed that it was a self-executing order resulting in automatic dismissal if there was a failure to comply.
Henceforth, because of the established pattern of no-compliance, the Tribunal will impose springing orders as a matter of course in all Widji objections whenever directions are made or remade. However, I point out that the opportunity remains open for the Widji native title party to make submissions on the issue of springing orders and on the matters (including the statistics referred to in para [15] above) which have been taken into account by the Tribunal in its decision.
Decision
Expedited procedure objection application WO05/564 is dismissed pursuant to s 148(b) of the Native Title Act 1993.
Hon C J Sumner
Deputy President
15 June 2006
262
9
0