Puutu Kunti Kurrama and Pinikura People v Brockman Exploration Pty Ltd and Another
[2016] NNTTA 46
•18 October 2016
NATIONAL NATIVE TITLE TRIBUNAL
Puutu Kunti Kurrama and Pinikura People v Brockman Exploration Pty Ltd and Another [2016] NNTTA 46 (18 October 2016)
Applications No: WO2015/0798; WO2015/0799
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection application
Puutu Kunti Kurrama and Pinikura People (WCD2015/003) (native title party)
-and-
The State of Western Australia (Government party)
-and-
Brockman Exploration Pty Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal:Ms H Shurven, Member
Place:Perth
Date of dismissal: 14 October 2016
Date of reasons: 18 October 2016
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications dismissed.
Legislation:Native Title Act 1993 (Cth), ss 29, 148(b)
Cases:Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)
Roy Dixon and Peggy Mawson on behalf of the Gurdanji Karranjini People; Gordon Lansen on behalf of the Mara, Alawa, Yanyuwa and Gurdanji People; Les Hogan on behalf of the Garawa and Gurdanji People/Northern Territory/Ashton Mining Ltd; North Mining Ltd [2002] NNTTA 48 (‘Dixon v Northern Territory’)
Western Australia v Ben Ward & Ors on behalf of the Miriuwung Gajerrong peoples & Carnegie Minerals NL & Pecan Holdings Pty Ltd [1996] FCA 993; 70 FCR 265 (‘WA v Ward’)
Representative of the
native title party: Ms Sabina Schlink, Thomas Legal
Representative of the
Government party: Ms Bethany Conway, Department of Mines and Petroleum
Representative of the
grantee party: Mr Kevin Connell, Austwide Mining Title Management Pty Ltd
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On the dates specified in the attached schedule, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E47/3285-I and E47/2994-I to Brockman Exploration Pty Ltd (Brockman Exploration). The area of the proposed licences wholly overlaps the Puutu Kunti Kurrama and Pinikura People (PKKP’s) native title determination (Chubby on behalf of the Puutu Kunti Kurrama People and the Pinikura People #1 and #2, WCD2015/003, determined on 2 September 2015).
The State included an expedited procedure statement in the public advertisement of the licences, which asserts the grant of each licence can be made without negotiation between the PKKP, the State, and Brockman Exploration.
In October 2015 (as outlined in the attached schedule), the PKKP lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of each of the proposed licences. They did this through the Yamatji Marlpa Aboriginal Corporation, their representative at that time.
To answer the question of whether the licences can be granted in an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiries.
Requests to dismiss the objection applications
On 7 April 2016, the Yamatji Marlpa Aboriginal Corporation contacted the Tribunal advising that, following the PKKP determination of native title, they no longer represented the PKKP. Any native title related matters were now to be referred to the new PKKP legal representative, Ms Sabina Schlink of Thomas Legal. The Tribunal made numerous attempts to contact Ms Schlink by telephone and email to confirm that Thomas Legal would be representing the PKKP. The Tribunal received no response from Ms Schlink. Ms Schlink was advised by email that if there continued to be no response, directions would be issued.
On 28 April 2016 I made directions requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted to the grant. The PKKP were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavit, on or before 9 June 2016.
Neither contentions nor evidence were received from the PKKP by 9 June 2016. On 10 June 2016, the State wrote to the PKKP’s representative, Brockman Exploration’s representative and the Tribunal, requesting the objection be dismissed because the PKKP had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.
On 14 June 2016, the Tribunal wrote to the PKKP’s representative and Brockman Exploration’s representative, asking them to respond to the State’s request to dismiss the objection. Parties were given until 21 June 2016 to respond. No response was received from the PKKP or Brockman Exploration.
As the Tribunal had still not received confirmation of the representation of the PKKP from Thomas Legal, I vacated directions on 24 June 2016 and parties were advised that a directions hearing would be held to progress the matters. No response was received from the PKKP. On 25 July 2016, the Tribunal sent another email to the PKKP’s representative, Brockman Exploration’s representative and the State advising the Tribunal was still awaiting a response on the PKKP’s representation. No response was received and on 29 July 2016 parties were notified a directions hearing would be held on 3 August 2016. The PKKP’s representative did not attend, nor did they contact the Tribunal either prior to or following the directions hearing.
On 3 August 2016, I reinstated directions, requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted to the grant. The PKKP were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavit, on or before 14 September 2016. Directions were communicated to parties who attended the hearing, and then sent by email to all parties, including the PKKP representative.
During these various attempts to contact the new PKKP representative, between April and September 2016, copies of substantive emails were also sent to the PKKP Aboriginal Corporation RNTBC Company Secretary, and a detailed letter, outlining this and other matters which required urgent attention, was sent from the Tribunal to the RNTBC Trustee Body Corporate address. No response was received from these communications.
Neither contentions nor evidence were received from the PKKP by 14 September 2016. On 15 September 2016, the State wrote to the PKKP’s representative, Brockman Exploration’s representative and the Tribunal, requesting the objection be dismissed because the PKKP had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.
On 15 September 2016, the Tribunal wrote to the PKKP’s representative and Brockman Exploration’s representative, asking them to respond to the State’s request to dismiss the objection. Parties were given until 22 September 2016 to respond. No response was received from the PKKP or Brockman Exploration.
On 29 September 2016, Ms Sabina Schlink of Thomas Legal contacted the Tribunal advising that the PKKP Aboriginal Corporation had formally appointed Thomas Legal to act in all their Future Act matters. On 30 September 2016, all parties were advised by the Tribunal that a listing hearing would be held on 7 October 2016 to ‘get an update from the native title party representative’.
On Friday 7 October 2016, a listing hearing was held in order to hear from the PKKP’s representative. While the State and Brockman Exploration representatives attended, the PKKP’s representative did not attend this hearing, either by telephone or in person, and did not provide any reasons for non attendance.
Application of Springing Order to directions
On Monday 10 October 2016, the Tribunal sent an email to all parties, which attached further directions with a springing order, and included the following text:
Member Shurven draws the native title party representative’s attention to the decision of Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266. As outlined in that decision, ‘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’.
Member Shurven considers these matters are now such that the native title party representative’s clients are at risk of having these objections dismissed, due to repeated failure to comply with directions, to comply with requests for information on progress, or in fact, to provide any response at all. Please find attached updated directions seeking native title party compliance on Friday 14 October 2016, with a springing order attached. Any submissions regarding the application of that springing order, or regarding the directions themselves, may be made by or on close of business Thursday 13 October 2016.
Direction 3 of these updated directions for both matters stated:
Should the native title party not comply with Direction (2) [to provide contentions and evidence] on or before 14 October 2016 the Tribunal pursuant to s 148(b) of the Native Title Act 1993 (Cth) shall forthwith dismiss the expedited procedure objection application...
Direction 9 for both matters gave parties liberty to apply for variation.
In attaching springing orders to directions in this matter, I had regard to Dixon v Northern Territory (at [24]), which decided that 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...
Should the objection applications be dismissed?
As noted in the email from the Tribunal to parties on 10 October 2016, parties were given until close of business on Thursday 13 October 2016 to make any submissions in relation to the application of the springing order or the directions. On 13 October 2016, Ms Schlink of Thomas Legal contacted the Tribunal by telephone to advise she had been appointed as the PKKP representative six weeks ago, and was having difficulties obtaining information from the previous representative. In this communication with Ms Schlink, the Tribunal reiterated the important dates requiring urgent attention. Nonetheless, no submissions were made in relation to the application of the springing order or the compliance directions by close of business on 13 October 2016.
The Tribunal did not receive any contentions or evidence from the PKKP on or by 14 October 2016. Accordingly, the self executing springing order came into action as of close of business that day, and both matters are now dismissed.
It may be that the PKKP no longer wish to prosecute these objections, however, this has not been communicated to the Tribunal. Whatever the status of these objection applications, the PKKP or its representative should have clearly communicated that status to the Tribunal, sought additional time for compliance if it was needed, or sought a variation in the directions or springing order so that the applications could be progressed. However, none of these actions were taken.
In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). In particular, I note the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection. I also note the Federal Court decision in WA v Ward, which established that a determination whether the expedited procedure is attracted is to be made as speedily as possible.
The expedited procedure process provides that a native title party can lodge an objection (s 32(3)), as the PKKP has done in these matters. However, in the context of the s 32 expedited procedure, there is no obligation on the State to give the native title party – in this inquiry, the PKKP – the opportunity to make submissions regarding the act. There is also no obligation on the parties to negotiate, in contrast to the procedure required by s 31. That is, under s 32, the native title party has no right, and the other parties have no obligation, to negotiate in the course of the expedited procedure process. In the course of these inquiries, the State twice requested the objections be dismissed.
Parties need to be aware that once expedited procedure objection application inquiries come before the Tribunal, the Member’s only functions under the Native Title Act 1993 (Cth) are to accept an objection application if it complies with s 76 and, having done so, determine whether or not the expedited procedure is attracted. If I determine the expedited procedure is attracted, the State may do the act. If I determine it is not attracted then, and only then, does the right to negotiate arise. Following a determination, the expedited procedure inquiry process has then been completed.
In practical terms, the Tribunal recognises that an agreement which can be negotiated between parties will usually be preferred by parties, over one that is imposed on them through an arbitral process. The Tribunal also recognises that it takes time to negotiate agreements, taking into account the decision making processes of the parties. However, once an objection application is made by a native title party, it must proceed with that objection as quickly and effectively as possible. Where time for negotiation is needed to make an agreement, or to take instructions, it will be considered by the Tribunal. However, if a party gives no response or fails to provide information or evidence when directed, it is likely to prejudice the other parties, and may result in the dismissal of the objection. Dismissing these applications is not something I have done lightly.
In the circumstances, the PKKP has been given sufficient opportunity to comply with directions set by the Tribunal, to provide written submissions regarding any difficulties their representative was having in obtaining instructions, or to obtain information from the PKKP or previous legal representatives. It would be unfair to prejudice the other parties with further delays. I do not need to answer the question of whether the licences can be granted in an expedited way as the objection applications have been dismissed by the springing order which came into effect in both matters on 14 October 2016.
Decision
The objection applications against exploration licence E47/3285-I and E47/2994-I were dismissed by operation of a springing order on 14 October 2016, as per s 148(b) of the Native Title Act 1993 (Cth).
Ms Helen Shurven
Member
18 October 2016
SCHEDULE – DETERMINATION
Tenement Government Party Notification Objection Application Lodged Objection Application No. Grantee Party Native Title Party &
Application No.E47/3285-I 15/07/2015 2/10/2015 WO2015/0798 Brockman Exploration Pty Ltd Puutu Kunti Kurrama and Pinikura People – WCD2015/003 E47/2994-I 1/07/2015 1/10/2015 WO2015/0799 Brockman Exploration Pty Ltd Puutu Kunti Kurrama and Pinikura People – WCD2015/003
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