Maggie John & Others on behalf of the Malarngowem Native Title Claim – WC99/44/Western Australia/Tudor Rose Holdings Pty Ltd (Wo00/300) and Conquest Mining Nl (Wo00/378)
[2001] NNTTA 43
•7 June 2001
NATIONAL NATIVE TITLE TRIBUNAL
Maggie John & Others on behalf of the Malarngowem Native Title Claim – WC99/44/Western Australia/Tudor Rose Holdings Pty Ltd (WO00/300) and Conquest Mining NL (WO00/378), [2001] NNTTA 43 (7 June 2001)
Application No.s: WO00/300 & WO00/378
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an Inquiry into an Expedited Procedure Objection Application
Maggie John & Others on behalf of the Malarngowem Native Title Claim – WC99/44 (native title party)
-and-
The State of Western Australia (Government party)
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Tudor Rose Holdings Pty Ltd (WO00/300) and Conquest Mining NL (WO00/378) (grantee parties)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Member Jennifer Stuckey-Clarke
Place: Perth
Date: 7 June 2001
Catchwords: Native title – future act – proposed grant of mineral tenement application - objection to inclusion in an expedited procedure application – failure within a reasonable time to proceed with the application - failure to comply with directions - objection application dismissed.
Legislation:Native Title Act 1993 (Cth) s148(b).
On 23 February 2000, the State of Western Australia (“the State”) issued a notice under s.29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant Exploration Licence 80/2540 to Tudor Rose Holdings Pty Ltd (‘the first grantee’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 23 June 2000, Maggie John & Others on behalf of the Malarngowem Native Title claim group (‘the objectors’) lodged an objection to inclusion in an expedited procedure application with the Tribunal. The Tribunal reference number allocated to this application is WO00/300.
The preliminary conference was held on 27 July 2000. The Tribunal had given directions requiring parties to produce contentions and documents in relation to an inquiry into whether the expedited procedure was attracted. The State complied with the directions within the time specified. The objectors did not comply with the directions.
On 19 April 2000, the State issued a notice under s.29 of the Act of its intention to grant Exploration Licences 80/2554 and 80/2555 to Conquest Mining NL (‘the second grantee’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 17 August 2000, the objectors lodged an objection to inclusion in an expedited procedure application with the Tribunal. The Tribunal reference number allocated to this application is WO00/378.
The preliminary conference was held on 13 September 2000. The Tribunal had given directions requiring parties to produce contentions and documents in relation to an inquiry into whether the expedited procedure was attracted. The State complied with the directions within the time specified. The objectors did not comply with the directions.
A listing hearing was held in WO00/300 on 24 November 2000 and in WO00/378 on 29 November 2000. In both instances parties confirmed that there were prospects for agreement and, as Tudor Rose Holdings Pty Ltd, the first grantee, was a subsidiary of Conquest Mining NL, the second grantee, it was decided that both matters could be heard together in the future.
Listing Hearings were then conducted on 22 December 2000, 25 January 2001 and 15 February 2001. Each time the parties confirmed that negotiations were occurring and that agreement was likely. At the listing hearing before Deputy President Sumner on 9 March 2001, the grantees stated that they believed that they were to receive a draft agreement from the objectors before 25 January 2001. The legal representative of the objectors stated that a meeting with the claimant group was to occur the following week in order to finalise the terms of the draft agreement. The matters were adjourned to 16 March 2001.
Both matters were listed before the Tribunal on 23 March 2001, when Deputy President Sumner queried the lack of progress. The legal representative of the objectors, Mr Hwang, stated that endeavours to seek instructions had been impeded by the Kimberley Land Council’s inadequate resources. Further directions for the lodging of contentions and affidavits were made with compliance by the objectors to be on or before 27 April 2001 and the grantee on or before 4 May 2001. On that day, I was appointed the Member to conduct the inquiry.
The matters were heard before me for the first time on 10 April 2001. The objectors’ legal representative, Mr Hwang, said that he had only recently met with the objectors and the relevant claimant group and had had no time to discuss any proposals with either the grantees or the State. The grantees’ representative, Ms McColgan, said that the grantees “just wanted to resolve the matter as soon as possible dependent on the terms that they request in any agreement. That would be something I would have to discuss with my directors. If they are reasonable requests, then I would see no problem doing so”. The State indicated that it might now be appropriate for the matters to proceed to determination.
On 10 April, I made orders that the objectors should file a statement of contentions and evidence by 27 April 2001 and the grantees by 4 May 2001 when the matter would be relisted. I said that this was “the last opportunity” for the objectors and grantees to file contentions and evidence or come to some agreement, given the delays that had previously occurred in the matter. On 4 May 2001 the directions hearing was adjourned to 9 May 2001 and after the hearing was adjourned, the Tribunal received a letter from the grantees’ representative Ms McColgan, attaching a copy of draft Deed of Variation which said:
“I apologise for my non-attendance today. I discussed these matters with Peter Hwang and a Variation Deed will be executed, in which (sic) I obtain a copy yesterday, 3 May 2001.
I have made some amendments to the Deed and have forwarded to Peter for approval. I am currently awaiting reply and would expect to have these matters finalised by the end of next week.”
At the next hearing on 9 May 2001, the grantees were not represented and Mr Hwang, for the objectors, informed the Tribunal that agreement had been reached between the objectors and grantees and that the agreement was being executed by the grantees “as we speak”. I congratulated him on the resolution of such a drawn out matter and said that the fact that agreement had finally been reached vindicated the patience of the Tribunal, this being a matter in which there had been eight adjournments and no evidence ever lodged by the objectors or grantees on the basis that agreement was being negotiated.
On 11 May 2001 the Tribunal contacted the grantees to confirm the execution of the agreement. The grantees denied that any agreement had been reached. The matters were relisted before me on 21 May 2001.
At the hearing on 21 May 2001, the Tribunal was informed that no draft agreement was received by the grantees from the objectors until 15 May 2001 and that the draft agreement had not been acceptable to the grantees. Mr Hwang said he had emailed the draft agreement to Ms McColgan on 4 May 2001. Ms McColgan said she had never received it. I confirmed that there was presently no agreement for the withdrawal of the objections. In addition, the objectors had not filed any contentions or evidence in accordance with the directions made on 10 April 2001.
In the circumstances, given the delays that have occurred in these matters and the failure of the objectors to comply with the directions of 10 April, 2001, I dismiss the objection pursuant to s.148(b) of the Native Title Act (1993) (“the Act”) on the basis of the objectors’ failure within a reasonable time to proceed with the application and the failure to comply with the Tribunal’s directions made on 23 March 2001 and again on 10 April 2001.
I would like also to strike a note of caution in relation to legal representatives’ duties of probity and full disclosure to the Tribunal. At the hearing on 9 May 2001, the legal representative of the objectors advised the Tribunal that agreement had been reached and that the agreement was being executed “as we speak”. The grantees’ representative was not present at the hearing and the Tribunal is obliged to rely upon what it was told by parties who are present. What it was told was not the fact and it does not appear that Mr Hwang had any substantial basis for believing it to be the fact, and had the Tribunal not contacted the grantees to confirm execution of the agreement, the matter may not have been relisted for some time. That would have been a most unsatisfactory situation for all parties. Whilst misunderstandings can and do arise, legal representatives should be aware of their obligations not to mislead the Tribunal as to any relevant matters. Whether or not finalised agreement has been reached is something which is peculiarly within the parties’ knowledge and legal representatives, in particular, should be astute to distinguish, as their legal expertise should enable them to do, between what they hope has happened or will happen in the future and what is the present fact. Whilst such failures might be forgivable in lay persons, they are not so far as legal practitioners are concerned.
(signed)
(by email)
J. E. Stuckey-Clarke
Member
7 June 2001
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