Maggie John and Others on behalf of the Malarngowem Native Title Claimants/Western Australia/Sammy Resources Pty Ltd

[2009] NNTTA 148

NATIONAL NATIVE TITLE TRIBUNAL

Maggie John and Others on behalf of the Malarngowem Native Title Claimants/Western Australia/Sammy Resources Pty Ltd, [2009] NNTTA 148 (9 November 2009)

Application Nos:      WO08/696, WO08/956

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Maggie John and Others on behalf of the Malarngowem Native Title Claimants - WC99/44 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Sammy Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            29 October 2009
Date of reasons:              9 November 2009

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 Act1993 (Cth) ss 29, 148(b)

Cases:Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67

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

Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265

Representatives of the      Ms Hema Hariharan, Kimberley Land Council

native title party:              Ms Ania Maszkowski, Kimberley Land Council

Representative of the        

Government party:           Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the        Ms Denice Johns,

grantee party:  Hetherington Exploration and Mining Title Service

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 23 April 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4014 to Sammy Resources Pty Ltd (‘the grantee party’). On 18 June 2008 the Government party also gave notice under s 29 to grant exploration licence E80/4015 to the grantee party. The notices included a statement that it considered that the grants 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 25 August 2008 and 18 October 2008, Maggie John and Others on behalf of the Malarngowem People - Native Title Claim No. WC99/44 registered on 4 February 2000 (‘the native title party’) made expedited procedure objection applications to the Tribunal in relation to E80/4014 (WO08/696) and E80/4015 (WO08/956) (‘the proposed licences’).

3. The area, location and extent to which the proposed licences overlap the native title claim of the Malarngowen People is as follows:

• E80/4014 - 42.31 square kilometres, 33 kilometres north-easterly of Halls Creek in the Shire of Halls Creek, 84.72 per cent overlap;

• E80/4015 - 48.87 square kilometres, 49 kilometres northerly of Halls Creek in the Shire of Halls Creek, 100 per cent overlap.

Relevant facts

1. On 5 September 2008 the Tribunal made directions in WO08/696 requiring 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 22 December 2008. On 6 November 2008 similar directions were made in WO08/956, requiring native title compliance by 16 February 2009. In both case, the directions contained a statement that the objections may be dismissed pursuant to s 148(b) of the Act if the objector fails within a reasonable time to proceed with the applications or to comply with a direction of the Tribunal.

2. Between September 2008 and August 2009 parties reported attempts to negotiate an outcome which would result in disposal of the objections by agreement.  To accommodate these attempts a number of amendments to the time for compliance with directions were approved.  However, negotiations were complicated by the involvement of a number of potential purchasers for the proposed licences, as well as joint venture arrangements, and on 2 September 2009 the representative for the grantee party requested that the matters proceed to inquiry.

3. On 11 September 2009, the native title party requested an extension of time in which to comply with directions to 12 October 2009.  The Government and grantee parties agreed to the request and accordingly I amended directions to require native title party compliance by 12 October 2009, with a listing hearing scheduled for 22 October 2009.  Parties were advised in writing of this amendment on 11 September 2009 and on the same date were informed that no further requests for an extension of time would be considered.

4. On 16 October 2009, several days after the native title party’s due date for compliance, the native title party requested a further extension of time to March 2010 to make submissions, citing the impending wet season and ‘Law Business’ as reasons for this request. The grantee party supported the native title party’s request on the basis that it would not be able to access the ground until early March 2010 in any event. The Government party did not support the request and foreshadowed its intention to make application for dismissal of the objections pursuant to s 148(b) of the Act on the basis that there was no compliance by the native title party with a direction of the Tribunal.

5. The Government and grantee parties have complied with amended directions.  To date, no contentions or evidence from the native title party has been forthcoming.

6. At the listing hearing on 22 October 2009 the Government party made application to dismiss the objection applications pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party. The native title party provided no reason for its non-compliance and again stated it could not comply until March 2010 because of the wet season and Law Business.

7. It has been clear to the native title party since 2 September 2009 that the grantee party wished to proceed to inquiry and therefore that contentions and evidence for an inquiry were necessary.  On 27 May 2009 the Government party also put parties on notice that it would be unlikely to agree to further requests for time on the basis that no agreement had been reached in the intervening months.

8. In Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at [13]) the Tribunal (Member Sosso) set out the principles applicable when considering dismissal of an objection application under s 148(b) of the Act which I have had regard to in this matter. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure application (Little v Western Australia [2001] FCA 1706 (6 December 2001); (2001) 6(4) AILR 67 (at [84]-[85]) (per Nicholson J) and Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265 at 278 (per Lee J)). In these matters, the native title party was represented by the Kimberley Land Council (‘the KLC’) the recognised native title representative body under the Act for the area of the claim which has special responsibility for representing claimants in relation to native title determination proceedings and associated future acts. The KLC and its legal representatives would be fully aware of the need to comply with Tribunal directions to enable contentions and evidence to support the objection application to be placed before the Tribunal in a timely manner. The native title party applied for seven extensions of time which were granted by the Tribunal, with the consent of the Government party and grantee party. No satisfactory explanation has been offered for the failure to comply.

9. Taking all these factors into account, I find that the native title party has failed within a reasonable time to proceed with its objection 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.

Decision

1. The objection applications WO08/696 and WO08/956 are dismissed pursuant to s 148(b) of the Native Title Act1993.

Hon C J Sumner
Deputy President
9 November 2009