Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Wilinggin Native Title Claimants/ Western Australia/ Baracus Pty Ltd

[2006] NNTTA 157

NATIONAL NATIVE TITLE TRIBUNAL

Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Wilinggin Native Title Claimants/ Western Australia/ Baracus Pty Ltd, [2006] NNTTA 157 (5 December 2006)

Application No:        WO05/851

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

-and-

IN THE MATTER of an inquiry into an expedited procedure objection application

Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Wilinggin Native Title Claimants (native title party)

-and-

The State of Western Australia (Government party)

-and-

Baracus Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Daniel O’Dea, Member
Place:  Perth
Date of dismissal:     30 November 2006
Date of reasons:        5 December 2006

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 — springing order dismissing expedited procedure objection application in event of non-compliance — objection application dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 148(b), 203BB

Cases:Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, [2005] NNTTA 59 (23 August 2005), Hon C J Sumner

Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Saunders, [2006] NNTTA 76 (15 June 2006), Hon C J Sumner

Ruby Saltmere (Indjilandji/ Dithannoi)/Queensland/Savannah Resources Pty Ltd, NNTT QO04/94, [2005] NNTTA 54 (5 August 2005), John Sosso

Hearings:28 September 2006

19 October 2006

2 November 2006

Representatives of the       Mr Brendan Renkin, Kimberley Land Council

native title party:               Ms Ania Maszkowski, Kimberley Land Council

Representative of the

grantee party:  Mr Matthew Clohessy, Emerald Tenement Services

Representative of the        Ms Jan Mason, Department of Industry and Resources

Government party:           Mr Greg Abbott, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 7 September 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1460 (‘the proposed licence’) to Baracus Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 7 December 2005, Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Wilinggin Native Title Claimants — native title determination application no. WC99/11 registered from 9 July 1999 (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence.

3. The proposed licence comprises an area of some 91.48 square kilometres located 122 kilometres easterly of Derby in the Shire of Derby-West Kimberley and is overlapped 49.8 per cent by the registered claim of the native title party.

Relevant facts

1. The Tribunal made directions on 19 December 2005 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. 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.

2. Between January and March 2006 a number of preliminary conferences were convened at which the representative for the grantee party, Mr Matthew Clohessy, advised that he was awaiting instructions from the grantee in relation to the native title party’s proposed heritage protection agreement (‘HPA’).  Further adjournments to facilitate execution of the HPA followed advice on 7 March 2006 that the grantee was willing to enter into the agreement, and directions were first amended and later vacated to allow that process to be finalised.  However, at an adjourned status conference convened on 12 July 2006 Mr Clohessy indicated that the grantee party was no longer willing to sign the HPA and on 19 July 2006 confirmed that the grantee party now requested that the objection proceed to Inquiry.  Accordingly directions were reinstated with the consent of all parties, requiring native title party compliance on or before 28 August 2006.  The representative for the native title party, Mr Brendan Renkin, a Solicitor with the Kimberley Land Council, also requested that the matter be scheduled for a further adjourned status conference prior to compliance dates so that the grantee party’s position could be confirmed following further discussion.

3. On 15 August 2006, I was appointed the Member to constitute the Tribunal for the purposes of the Inquiry.

4. At the adjourned status conference of 16 August 2006 the native title party requested a further extension of the time for compliance with re-instated directions on the basis that Mr Renkin was currently on country gathering affidavit material and the remote locality hampered its expeditious collection. All parties agreed to the request and accordingly on 21 August 2006 I approved the variation, with native title party compliance now being required on or before 25 September 2006. However, at the Listing Hearing of 28 September 2006, the native title party was in default of the direction and requested a further six weeks in which to comply on two bases: that further time was required to prepare contentions and affidavit evidence, and to allow dialogue with the grantee party to establish the nature of its dissatisfaction with the HPA, and thereby facilitate a mutually agreed outcome. Mr Greg Abbott, for the Government party, made application to dismiss the objection pursuant to s 148(b) of the Act for non-compliance, but this application was not supported by the grantee party. After consideration of parties’ positions I approved the native title party’s request that its date for compliance be extended to 9 November 2006 but noted that further requests would not be viewed favourably unless significant progress had been made. This position was reiterated during a further conference on 19 October 2006.

5. On 2 November 2006 I convened an adjourned status conference during which the native title party made further application for a variation to directions citing reasons similar to those relied upon for the previous request.  The Government party did not support the request, and the grantee party was unrepresented at the conference.  In consideration of the native title party’s desire to reach an agreed outcome (and noting the grantee party’s willingness to support the previous extension request for similar reasons), I provided a final opportunity for the native title party to comply, but imposed a ‘springing order’ similar to that proposed by the Hon C J Sumner in Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Saunders, [2006] NNTTA 76 (15 June 2006) (see para [11] and cases cited therein), such that if the native title party did not comply by the due date of 30 November 2006, the objection application would be dismissed automatically. In making this order I had consideration for the Government party’s concern that finalisation of the matter not be subject to further delay and for the fact that no less than five extensions to directions had already been permitted to the native title party (four of which being granted at the request of the native title party).

6. The Government party has complied with directions and the grantee party has indicated its intention to rely on those submissions.  As at close of business on 30 November 2006, neither contentions, nor evidence, nor a request for further amendment of the directions had been received from the native title party.

7. On 1 December 2006 Mr Renkin wrote to the Tribunal stating that the native title party was unable to comply with the directions of 2 November 2006 and requesting a further four weeks in which to continue attempts to contact and meet with the grantee party.  On advice from the Tribunal’s case manager that the springing order dismissing the objection was self-executing as of close of business 30 November 2006, and therefore that the objection already stood dismissed, further email correspondence was received from the Kimberley Land Council acknowledging that although the objection was no longer technically active, a further four week adjournment was still sought to permit a mutually-agreed outcome. 

8. The native title party has been aware since 19 July 2006 that the grantee party wished to proceed to Inquiry and that, despite Mr Clohessy’s willingness to engage in further discussion to clarify the grantee party’s reasons for rejecting the proposed agreement, there was little prospect of an expeditious mutually agreed outcome.  Nonetheless and despite the Tribunal’s accommodating approach to repeated requests for variations to directions, it is clear that no steps have been made in the preparation of contentions and evidence for an inquiry.  On this basis alone, I would have refused Mr Renkin’s request for a further extension.  However, as noted above, Mr Renkin’s request was made after close of business on 30 November 2006, and therefore post-dated the dismissal of the objection for non-compliance.      

9. In Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, [2005] NNTTA 59 (23 August 2005) (‘Wolsog’), the Hon C J Sumner had regard for the principles applicable when considering dismissal of an objection application under s 148(b) of the Act as set out in Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at [13]) and I adopt those reasonings for the purposes of this determination. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure application (see also Ruby Saltmere (Indjilandji/ Dithannoi)/Queensland/Savannah Resources Pty Ltd, NNTT QO04/94, [2005] NNTTA 54 (5 August 2005), John Sosso citing the Federal Court in Little v Western Australia [2001] FCA 1706 (6 December 2001); (2001) 6(4) AILR 67 (at [85]) (per Nicholson J) and Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265 at 278 (per Lee J)). As in Wolsog, the native title party was represented by the Kimberley Land Council, the designated Native Title Representative Body under section 203BB of the Act 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. 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, despite having been informed of the possible consequences of a failure to comply, and despite the imposition of a springing order automatically dismissing the objection in the event of non compliance.

Decision

1. The applicant (native title party) has failed to comply with a Direction by the Tribunal and accordingly the objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Daniel O’Dea
Member

5 December 2006