Ned Cheedy and Others on behalf of Yindjibarndi People #1/FMG Pilbara Pty Ltd/Western Australia
[2011] NNTTA 30
•1 March 2011
NATIONAL NATIVE TITLE TRIBUNAL
Ned Cheedy and Others on behalf of Yindjibarndi People #1/FMG Pilbara Pty Ltd/Western Australia, [2011] NNTTA 30 (1 March 2011)
Application No: WF10/19
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an Inquiry into a Future Act Determination Application
Ned Cheedy and Others on behalf of Yindjibarndi People #1 (WC03/3) (native title party)
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FMG Pilbara Pty Ltd (grantee party)
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State of Western Australia (Government party)
DECISION ON APPLICATION TO AMEND DIRECTIONS
Tribunal: Daniel O’Dea, Member
Place: Perth
Date of Decision: 11 February 2011
Date of Reasons: 1 March 2011
Hearing date: 11 February 2011
Representatives:-
Native Title Party: Mr George Irving, Barrister
Ms Kate House, Slater and Gordon
Grantee Party: Mr Ken Green, Green Legal Pty Ltd
Government Party: Mr Matthew Pudovski, State Solicitor’s Office
Mr Simon Taylor, State Solicitor’s Office
Ms Paola O’Neill, Department of Mines & Petroleum
Catchwords: Native title – future act determination application – Directions set - request to amend directions – factors to be taken into account – amendment granted.
Legislation:Native Title Act 1993 (Cth) ss 29, 35, 36, 36A, 38, 75, 150
Mining Act 1978 (WA)
Cases:Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puntu Kunti Kurrama and Pinikura People #2/Western Australia, WF10/25 [2010] NNTTA 211 (19 December 2010) Hon C J Sumner
Puutu Kunti Kurrama & Pinikura People; Puutu Kunti Kurrama & Pinikura People #2/Magnesium Resources Pty Ltd; Anthony Warren Slater/Western Australia, [2011] NNTTA 2 (31 January 2011) Mr J Sosso
Townson Holdings Pty Ltd & Joseph Frank Anania v Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia [2003] NNTTA 82 (9 July 2003) Hon C J Sumner
REASONS FOR DECISION TO AMEND DIRECTIONS
On 9 February 2011, an application was made by the legal representative of the Yindijibarndi People # 1 (WC03/3) (‘the native title party’) to amend the Directions made by the Tribunal on 3 February 2011 (‘the Directions’) to allow more time for the submission of evidence and contentions on the issues of Negotiation of Good Faith and the submission of supporting evidence on the substantive component of the inquiry.
I was appointed, on 27 August 2010, to be the presiding Member for this inquiry. Consequently the application for leave to amend the Directions is before me for consideration.
The matters before the Tribunal involve the proposed grant of certain mining and exploration tenements. The government party gave notices under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) between 12 January 2005 and 26 August 2009. On 25 August 2010 the grantee party made application pursuant to ss.35 and 75 for a determination pursuant to s 38.
Subsequent to the making of the original Directions, the native title party has made a number of requests for extensions of time. The history of the requests is outlined below:
·The first request was made by the native title party on 30 September 2010 citing email and internet difficulties. The request was to extend Direction 1 of the Good Faith component of the inquiry to 5 October 2010. The Tribunal granted this request on 1 October 2010.
·The native title party did not comply on the due date, 5 October 2010. The native title party purported to comply over a number of days between 7 October 2010 and 12 October 2010.
·The second request to amend Directions of the Good Faith component of the inquiry was made by the Government party on 7 October 2010. The Tribunal approved the amendment on the basis that the native title party only fully complied with the directions on 12 October 2010. Directions (2-4) were amended with the native title compliance date due on or before 4 November 2010.
·The third request to amend Directions was made by the native title party on 3 November 2010, seeking to amend the compliance date for Direction 3 of the Good Faith component of the inquiry to 12 November 2010 and Direction 4 to 15 November 2010. The Government party requested amendment of the substantive component Directions accordingly. The request was approved by the Tribunal on 4 November 2010.
·The native title party did not comply on the due date of 4 November 2010.
·The fourth request to amend directions was made on 15 November 2010 by the native title party on the basis that the native title party had not finished its submissions and consequently sought to extend the Good Faith component Direction 3 to 17 November 2010. On 16 November 2010, the Tribunal approved the request to extend the time for compliance of Good Faith Directions 3 and 4 to 17 November 2010.
·The native title party did not comply.
·On 18 November 2010 the native title party advised the Tribunal that it withdrew the Good Faith challenge.
·The fifth request to amend the Directions was made by the native title party on 14 December 2010, seeking to extend Direction 6 of the directions in relation to the substantive inquiry to 15 December 2010. The Tribunal approved the request on the basis that the native title party cited technical issues with its corrupted computer and loss of associated work.
·The sixth request to amend Directions was made on 16 December 2010, by the native title party citing cultural business and Elders’ commitments as a reason for delaying their ability to gather evidence. The native title party requested the Direction 6 be extended to 20 December 2010.
·The seventh request to amend Directions was made by the Government party on 17 December 2010 seeking to amend Direction 8 to 21 January 2011 on the basis of the earlier extension granted to the native title party.
·On 22 December 2010, the Tribunal approved both the native title party’s and the Government party’s requests. Directions 6 and Directions 8-9 were amended to 14 January 2011 and 21 January 2011 respectively, while Direction 10 was amended to the week commencing 31 January 2011. The Tribunal advised the parties that no further extensions would be granted.
·On 23 December 2010, the native title party advised that they would be filing contentions and evidence regarding the question of the Good Faith of the grantee party on 14 January 2011.
·On 10 January 2011, the Government party made a request for a right of reply to the native title party by 25 January 2011.
·The native title party did not comply on 14 January 2011.
·On 17 January 2011 the native title party submitted the affidavit of Mr Michael Woodley and accompanying documents raising issues of good faith and citing the illness of the native title party Counsel as reason for late lodgement.
·On 21 January 2011 the Tribunal held a directions hearing regarding the compliance by the native title party. At that hearing I expressed my concern and frustration at the continual delays of the native title party in complying with directions and the fact they had belatedly raised the issue of good faith again, after having withdrawn that contention in November 2010. The native title party asserted it had come into possession of new evidence of the grantee party’s behaviour, which was not known to it at the time that the original contention was withdrawn. The Government party and the grantee party opposed the orders sought on the grounds that the native title party had had ample opportunity to comply with orders and had repeatedly failed to do so without any cogent explanation being advanced in relation to such a failure. The grantee party also submitted that continuing delays were prejudicing its operations and causing it to incur unnecessary additional costs. After considering these submissions, I agreed to the extension, notwithstanding the fact that I had previously warned that no further extensions would be granted. I did so because the issue of good faith must be addressed in order to confer power on the Tribunal even if belatedly raised or reasserted (Townson Holdings Pty Ltd & Joseph Frank Anania v Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia [2003] NNTTA 82 (9 July 2003) Hon C J Sumner). Further, it is of great importance, and in accordance with the beneficial nature of the NTA, that the Tribunal have the benefit of the native title party’s submissions when assessing the criteria set out in s 39. Consequently, the following amended directions were made:
- Direction 6(a): Any party (being either the Government party or the grantee party) to file responsive material relating to the native title party’s evidence or contentions by 2 February 2011;
- Direction 6(b): The native title party is to file and serve contentions relating to the question of good faith by 27 January 2011;
- Direction 6(c): The Government and grantee parties to file any contentions and evidence in reply to the material filed pursuant to order 6(b) by 3 February 2011;
- Direction 8: was amended to 8 February 2011;
- Direction 10: was extended to 16 February 2011.
·The native title party did not comply with Direction 6(b) on 27 January 2011.
·The Tribunal accepted the native title party’s submissions provided in accordance with Direction 6(b) on the morning of 28 January 2011.
·The eighth request to amend Directions was made on 2 February 2011 by the native title party. The native title party cited the fact that the grantee party’s s 18 application for the Aboriginal Cultural Material Committee (ACMC) had occurred unexpectedly on 2 February 2011 and also that their Counsel was suffering from a medical condition as grounds for its failure to comply with order 6(a).
·On 2 February 2011, the Tribunal approved the amendment of Direction 6(a) from 2 February 2011 to 3 February 2011 on the condition that Counsel for the native title party provided a medical certificate in support of the native title party’s request.
·On 3 February 2011, the native title party provided Counsel’s medical certificate.
·The native title party did not comply with Direction 6(a) on 3 February 2011.
·On 4 February 2011, the native title party forwarded an unsworn affidavit of Mr Michael Woodley and cited technical issues with the native title party’s means of communication as a reason for the delay.
·The ninth request to amend the Directions was made on 8 February 2011 by the Government party to amend Direction 6(c) to 9 February 2011 on the basis that the native title party did not comply with Direction 6(a) until 4 February 2011.
·The tenth request to amend directions was made by the native title party on 9 February 2011, to accept all evidence filed and submitted to the Tribunal by the native title party out of time or in an incomplete fashion. I considered this request to be an application to amend the relevant directions, extending the time for compliance.
·On 11 February 2011, the Tribunal held a Directions Hearing in regards to the proposed amendment of Directions and acceptance of evidence filed on 4 February 2011.
At the directions hearing on 11 February 2011, the native title party outlined its reasons for seeking an application to extend the directions. Firstly, the native title party’s Counsel had been ill. Secondly, the native title party contended that there had been ‘unexpected demands on Counsel’s time, in respect to FMG’s s 18 Application before the ACMC. In that regard the native title party, through Mr Woodley, asserted that they had been advised by the Deputy Director of Operations in the Department of Indigenous Affairs (DIA), that the s 18 Application would not be dealt with on 2 February 2011 and that, as a result, no arrangement had been made in respect to the representation of the native title party at the ACMC meeting on 2 February 2011. However, according to Mr Woodley, on 1 February 2011, the native title party became aware that the grantee party’s s 18 Application would be considered by the ACMC on that day. The native title party’s instructing solicitor was not available on 2 February 2011 due to other commitments to attend the ACMC meeting and as such the native title party Counsel in this matter was required to prepare and attend on the ACMC at very short notice.
The native title party further contended that it was unable to meet the deadlines of the orders made because of the following factors which were outlined in Mr Woodley’s affidavit:
a.Two deaths in the Yindjibarndi Community;
b.Cultural obligations for Law Business which occurs ‘at this time of year’;
c.Ongoing problems with the email server at the native title party office in Roebourne since early January 2011; and
d.The telephone/ADSL service was knocked out on 31 January as a result of a lightning strike and had still not been fixed.
The grantee party opposed the request on the grounds that the approval of an extension of directions would prejudice the grantee party in that it would cause further delay and the resolution of its applications for the grant of tenements and incur unnecessary and additional costs. The grantee party relied upon the recent decisions of Deputy President Sosso in Puutu Kunti Kurrama & Pinikura People; Puutu Kunti Kurrama & Pinikura People #2/Magnesium Resources Pty Ltd; Anthony Warren Slater/Western Australia, [2011] NNTTA 2 (31 January 2011)) (‘Magnesium Resources’) and Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puuntu Kunti Kurrama and Pinikura People #2/Western Australia, WF10/25 [2010] NNTTA 211 (19 December 2010) Hon C J Sumner.
The Government party did not seek to actively oppose the amendment of the compliance dates on the basis that it could not point to any particular prejudice to it notwithstanding its view that the extensive delays which had occurred in this matter were extremely undesirable and could form the basis of an unhappy precedent for dealing with matters coming before the Tribunal.
In Magnesium Resources Deputy President Sosso provided a comprehensive yet succinct statement of the Tribunal’s approach to the grant of extensions of time (at [22]-[24]):
[22]...when considering applications for adjournments or extensions of time for compliance, the Tribunal is entitled to factor into its deliberations the overall impact on the Tribunal’s lists and the timely and effective disposition of matters. The Tribunal has to deal with large numbers of expedited procedures, objection applications and right to negotiate arbitrations every year. The work load is particularly heavy in Western Australia and Queensland. The Tribunal has relatively few members and staff to carry out not only those functions, but also requests for future act mediations and s 150 conferences. In an environment of declining staff numbers, members and resources, it is imperative that the Tribunal manage the future act inquiry process in a timely, certain and efficient manner. Such management is made that much more difficult when parties constantly seek amendments to directions to extend time for clients, either on the basis of their stated lack of resources or their desire to present the best possible case.
[23]The Tribunal is acutely aware of the multiplicity of issues confronting all professional bodies working in the native title future act environment. It is for that reason that the Tribunal takes particular care in making directions to meet, where possible, the needs of the parties and recognises the resource, logistic and cultural issues that often intrude and complicate the collection of evidence.
[24]However, the Act is drafted with clear aim of the Tribunal producing future acts in a timely way. Where directions are set, with the concurrence of the parties, it is in the interests of justice of those directions to not be subjected to repeated amendments extending time for compliance, which in turn, result in the Tribunal not meeting the timelines mandated by s. 36.
I entirely agree with these remarks and they form the basis upon which I approach this application.
As can be seen from the timeline set out in [4] above, this matter has a lamentable history of non compliance by the native title party. The explanation for the failures to comply have often been cursory and occasionally confusing. As can be seen from [4], after the extensions granted in late December 2011, the Tribunal indicated to the parties that no further extensions would be granted. In relation to the issues of cultural obligations over the summer season leading to an inability to obtain evidence, all of those matters were fully known to the native title party when they undertook to comply with the extended directions in early January 2011. The contention that they are a reason for further extension cannot be accepted. Further, it seems to me, in the circumstances, that the technical issues relating to the computers and the transmission of material from Roebourne to Perth, in order to comply with the requirements, could have been addressed by the reasonable application of commonsense to provide an alternative mechanism of conveyance to the Tribunal within or near the time required.
In relation to the question of the incapacity of the Counsel for the native title party, I accept that he has been unwell and has an illness which periodically makes it difficult for him to undertake the duties required of him. Ultimately, of course, this is a matter for his instructing solicitors. It is their primary responsibility to comply with directions made in relation to their client and in circumstances where Counsel is unable, due to illness, to comply with those requirements, steps should be taken to find an alternative Counsel, or alternatively, for the work to be done by the solicitors themselves. This is the case, notwithstanding that it may well be that the great bulk of the work is, in fact, being undertaken by the Counsel for the native title party, with, in practice, the solicitors for the native title party providing limited background assistance due to a lack of resources in the native title party. That is a practice that the native title party solicitors are entitled to adopt, but they should bear in mind that once they are on the record they are ultimately responsible for complying with directions which are made in these matters. In any event, I accept that, due to the nature of the Counsel for the native title party’s illness, it is not always predictable as to when he will be able to undertake the duties required of him and I take that into consideration.
The issue relating to the question of the requirement of Counsel for the native title party to attend the ACMC on 2 February 2011 is also a factor I have taken into consideration. At the hearing there was a suggestion from the grantee party that it may have been the case that there was no such undertaking from the DIA not to proceed with the s 18 Application on 2 February 2011. Consequently, it follows that the native title party should have been aware of its obligations on those days and planned its election of dates for compliance accordingly or, alternatively, raised it at the last directions hearing. I have no intention of pursuing the true circumstances of this matter other than to say that having heard from Counsel of the native title party I accept that it was his understanding that there was no such requirement upon him to attend or prepare for that ACMC hearing and it was his genuine belief that he would be free on those days to focus on compliance with the directions made in late January 2011. Of course, as we have seen, this did not turn out to be the case.
It is important to understand that by the time of the directions hearing on 11 February 2011, the Tribunal had, in fact, received an unsworn affidavit of Mr Woodley and the other submissions of the native title party filed on 9 February 2011. What the native title party was asking for was not for further time to provide the material to the Tribunal, but an extension of time for their provision in order that their actual provision would be compliant with directions. The only further order they sought was a very short additional period in order to effect the execution of Mr Woodley’s affidavit. The directions hearing was held on the afternoon of Friday 11 February 2011 and the order sought was that Mr Woodley have until noon on Monday 14 February 2011 to provide the executed document to the Tribunal. These are circumstances which are different, and different in a significant way, from those confronting both Deputy President Sosso and Deputy President Sumner in the Magnesium matters where the native title party sought a significant extension of time to collect and prepare the material. In this instance, the material is already with the Tribunal, save that the affidavit had not been sworn.
In the circumstances I have decided to grant the extension sought in the application. The reasons for doing so are as follows:
i.The illness of Counsel for the native title party;
ii.The fact that on one of the critical days, or perhaps even two of the critical days, immediately before the final date of compliance, Counsel was, in fact, occupied, dealing with a matter before the ACMC which he genuinely did not understand would be required of him at the time he made undertakings in relation to compliance dates;
iii.All of the material that was sought to be provided to the Tribunal was already before it, notwithstanding that it had been filed out of time;
iv.Should I have refused the extension, the Tribunal would be in a situation of having possession of material pertinent to its inquiry in relation to both good faith and the substantive inquiry which it would not have recourse to in its assessment of both the good faith question and the relevant criteria in s 39.
It is my view that the behaviour of the native title party and its advisers in this matter has been most unsatisfactory and it was a difficult decision to make. The attitude of the State in not actively opposing the orders sought was critical to balancing the competing priorities. Notwithstanding that, I can only reiterate again the paramount importance of parties complying with orders, particularly orders in which timeframes are proposed by those parties themselves. It does seem to me that it is of great importance that when parties propose dates, that they have some very firm foundation, in fact, in believing that they will be able to comply, notwithstanding the many vagaries and variables that predictably occur in native title matters, including seasonal constraints and customary law practices.
Consequently, the following amendment of Tribunal directions were made:
·Direction 6: The native title party to submit sworn affidavit and other evidence cited in the affidavit by 12 noon on 14 February 2011;
·Direction 8: Vacated;
·Direction 9: On or before 28 February 2011. The Government and grantee parties make submissions in reply to the native title party contentions and evidence;
·Direction 10: Listing hearing to be held on 8 March 2011.
Decision
The application by the native title party for amending the compliance dates for the Directions made on 11 February 2011 is granted.
Daniel O’Dea
Member
1 March 2011
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