Puutu Kunti Kurrama & Pinikura People; Puutu Kunti Kurrama & Pinikura People #2/ Magnesium Resources Pty Ltd; Anthony Warren Slater/Western Australia

[2011] NNTTA 2

NATIONAL NATIVE TITLE TRIBUNAL

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)

Application No: WF10/25

IN THE MATTER of the Native Title Act1993 (Cth)

- and –

IN THE MATTER of an Inquiry into a Future Act Determination Application

Angelina Cox and Others on behalf of on behalf of Puutu Kunti Kurrama Pinikura People (WC01/5)  (first native title party)

-  and  -

Angelina Cox and on behalf of Puutu Kunti Kurrama Pinikura People #2 (WC05/4)   (second native title party)

-  and  -

Magnesium Resources Pty Ltd and Anthony Warren Slater   (grantee party)

-  and  -

State of Western Australia     (government party)

DECISION ON APPLICATION TO AMEND DIRECTIONS

Tribunal:  John Sosso
Place:  Brisbane
Date of Decision:        25 January 2011

Date of Reasons:        31 January 2011

Hearing date:             25 January 2011

Representatives:-

First & Second Native

Title Parties:  Mr Ibrahim Kakay, Yamatji Marlpa Aboriginal Corporation

Grantee Party:  Mr Ken Green, Green Legal Pty Ltd

Government Party:              Ms Jade Harman, State Solicitor’s Office

Ms Ruth Lavender, Department of Mines & Petroleum Native Title Unit

Catchwords:     Native title – future act determination application – Directions set - request to amend directions – factors to be taken into account – amendment not granted.

Legislation:Federal Court of Australia Act 1976 (Cth) s 37M

Native Title Act 1993 (Cth) ss 29, 35, 36, 36A, 38, 75, 109, 150

Cases:Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

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) Deputy President Sumner

Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

Sali v SPC Ltd (1993) 116 ALR 625

REASONS FOR DECISION NOT TO AMEND DIRECTIONS

1. On 20 December 2010 an application was made by the legal representative of the Puutu Kunti Kurrama Pinikura People (WC01/5) and the Puutu Kunti Kurrama Pinikura People #2 (WC05/4) (‘the native title parties’) for amending the Directions made by Deputy President Sumner on 22 September 2010 (‘the Directions’) to allow more time for the collection of witness statements.

2. As Deputy President Sumner is currently on leave I was appointed, on 19 January 2011, to be the presiding Member for this inquiry up to, and including, 2 February 2011.  Consequently the application for leave to amend the Directions is before me for consideration.

3. The matters before the Tribunal involve the proposed grant of certain mining tenements. The government party gave notices under s.29 of the Native Title Act 1993 (Cth) (‘the Act’) between 14 January 2009 and 7 October 2009. On 8 September 2010 the grantee party made application pursuant to ss.35 and 75 for a determination pursuant to s.38.

4. As noted above, on 22 September 2010 Deputy President Sumner made directions for the disposition of these matters. On 19 December 2010 Deputy President Sumner determined that the grantee party had negotiated in good faith with the native title parties as required by s.31 and that the Tribunal had the requisite power to conduct an inquiry and make a s.38 determination – Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia, WF10/25 [2010] NNTTA 211 (19 December 2010).

5. Subsequent to the making of the original Directions, the native title parties made a number of requests for extensions of time.  The first of these requests was made on 18 November 2010, and the Tribunal agreed to extend compliance time for the good faith component of the proceedings on the basis that no change would be sought to extend the compliance dates for the substantive inquiry.

6. On 26 November 2010 the native title parties sought to extend the compliance dates for the substantive inquiry. The request was made by Mr. Kakay and the following reason was given for seeking amendment of the compliance dates: “Due to cultural lore business, and ongoing section 150 mediation, the Native Title Parties request the tribunal to amend directions 5 to 10 inclusive for compliance in early March 2011.”

7. This request was opposed by the grantee party for the following reasons:

   “(1)   the current directions contemplate a determination being made at approximately the expiration of 6 months from the lodgement of the s. 35 Application.  The date of the determination is largely in the Tribunal’s hands by reason of the Tribunal’s need to prepare and publish Reasons for Determination.  In any circumstance, the Tribunal should have reasonable time to consider any matter and prepare Reasons for Determination.  The parties recognise that the task is not insubstantial;

   (2)   the current directions arose largely because of extensions sought by the NTP at the First Directions Conference held 22 September 2010. Those extensions were sought to accommodate the NTP’s preparation of its ‘good faith’ materials.  The extensions sought were granted with the consequence that later compliance times were ‘pushed out’ to their current dates. In setting the later compliance times, the Tribunal took into account ‘cultural lore business’ and extended the compliance time for Direction 6 relative to Direction 5.  To the extent compliance time (sic) were ‘pushed out’, they were agreed to by the NTP. That is, the NTP did not raise any opposition to the ‘pushed out’ compliance dates, presumably because any opposition would have had consequences for the extensions it was then seeking;

   (3) at the Directions Conference on 22 September 2010, it was express consideration of the Tribunal that a Determination could be made within the indicative six month period referred to in s 36(3) of the Native Title Act 1993 (Cth) (‘NTA’);

   (4)   nothing has occurred since the Directions Conference on 22 September 2010 to warrant the current compliance dates being amended;

   (5)   the extended compliance dates sought by the NTP will, in any event, result in a determination by the Tribunal being made well outside the indicative six month period referred to in s 36(3) of the NTA;

   (6)   it is unclear (certainly to the Grantee Party) what constitutes ‘cultural lore business’, when it might commence and when it might complete.  The Grantee Party contends there must be something more than simply a reference to ‘cultural lore business’ by a lawyer to warrant the Tribunal amending its Directions, and certainly amending it beyond the indicative six month period referred to in s 36(3) of the NTA; and

   (7)    at the Directions Conference held 22 September 2010, the Grantee Party expressly stated that its involvement in the s 150 Conference process was conditional on that process not being used as a basis to delay any determination in this matter.”

8. The reference to s.36 by the grantee party is particularly relevant. Section 36 requires the Tribunal to make a determination “as soon as practicable”. In particular s.36(3) provides that if the Tribunal does not make a determination within 6 months of the lodging of a s.35 application, it must advise the Commonwealth Attorney-General in writing of this state of affairs, the reason for the failure to make a determination and an estimate of time as to when a determination will be made. Further, section 36A empowers the Commonwealth Attorney-General in specified circumstances to intervene and take over responsibility for making a determination. In short, ss.36 and 36A place a clear obligation on the Tribunal to act expeditiously when conducting a s.38 inquiry, and contemplate that if a decision is not made within a reasonable time, the Commonwealth Attorney-General is empowered to intervene and ensure that a decision is made in a timely way.

9. Deputy President Sumner’s decision was emailed to the parties on 6 December 2010. He determined that the reasons adduced by the native title parties were insufficient to justify the extension of time sought.  The following reasons were given:

   “The directions of 22 September 2010 were originally made taking into account the extra time needed by the native title party’s solicitor to consider the good faith issue.  The draft directions were extended by some 4 weeks at the native title party’s request.  Some 5 weeks (i.e. to 1 Feb) was allowed for the native title party to submit its contentions and evidence on the substantive issue following those from the Govt and grantee, a date that was acceptable to the native title party at the time the directions were made.  When amendments were made to the directions on 22 November 2010 it was on the basis that no change was sought to the dates for the substantive hearing.  On 26 November the current extension was sought.  The original directions date even though extended from those in the draft allowed the Tribunal to make a determination within 6 months of the application provided there are no unexpected delays (i.e.by 8 March 2011). See ss 36(1) and (2) of the NTA. The directions now sought do not permit this to happen.”

10. On 20 December 2010 Mr. Kakay emailed the Tribunal with a further request for amending the compliance dates.  Attached to the email was a “Minute of Consent Orders” which would have extended the compliance date for Direction 6 to 31 March 2011, for Directions 8 and 9 to 7 April 2011 and Direction 10 (the convening of a listing hearing) to 14 April 2011.  In his email Mr. Kakay said:

    “I attach copy of minute of consent orders for an extension of time that was agreed between the Native Title Parties and the Grantee party at the section 150 Mediation in Onslow on 17 December 2010.  While awaiting signature of the grantee party to the attached document, it is hoped that the tribunal will give due consideration to the application for extension of time.”

11. On 22 December 2010 Mr. Kakay again emailed the Tribunal and the other parties regarding the requested extension of the compliance dates. In this email reasons were advanced for the request:

    “As the Native Title Parties are not available for the collection of witness statements in the whole of January 2011, the interest of justice will best be served if the following directions are amended ...

    Due to cultural reasons and funding limitations, there is no way in which the Native Title Parties can comply with the present directions unless amended.  Apart from the unavailability of the Native Title Parties during the month of January as previously advised, there (sic) huge travel and accommodation expenses involved for YMAC staff to travel to the Pilbara to collect evidence and to file submissions in support of the section 39 criteria.”

12. I convened a Directions Hearing on 20 January 2011 to deal with the application. At that Hearing Mr. Kakay outlined in great length the reasons for the request, which focused on the difficulty of obtaining evidence from members of the native title party “on country” as well as matters that were said to have been discussed or agreed to at a s.150 conference convened by the Tribunal.

13. Mr. Green, on behalf of the grantee party, objected to Mr. Kakay addressing the Tribunal on matters that were said to have been discussed at a s.150 conference. He drew the Tribunal’s attention to s.150(3) which provides: “At a hearing before the Tribunal, unless the parties otherwise agree, evidence may not be given, and statements may not be made, concerning any words spoken or act done at a conference.”

14. Mr. Kakay was informed that he could not address the Tribunal on any words spoken, or act done, at a s.150 conference. In response he submitted that, in effect, Mr. Green had engaged in “sharp practice” and that, as a result, the native title parties were placed at a disadvantage. Mr. Green strenuously objected to this suggestion and informed the Tribunal that nothing was said or done at the s.150 conference which would justify granting the extension of time sought. He re-iterated that the grantee party had only agreed to participate in a Tribunal convened s.150 conference if such participation would not be used as a basis for delaying the determination of the proceedings.

15. Ms. Harman, on behalf of the government party, pointed out that the original Directions had already been amended to give an extension of time to the native title parties and that if a further extension was granted the arbitration would not be concluded within 6 months of the s.35 request being lodged.

16. When making or amending directions the fundamental and overarching principle guiding the Tribunal is the facilitation of a just resolution of the inquiry according to law and as quickly, inexpensively and efficiently as possible. This is the principle enshrined in s.37M of the Federal Court of Australia Act 1976 (Cth). This is the overarching purpose of civil practice and procedure and has equal resonance to the workings of administrative tribunals such as the National Native Title Tribunal.

17. The Tribunal works within a prescriptive legislative regime.  The Native Title Act 1993 places a high premium on the efficient and timely resolution of future act inquiries. Not only does the Act allow a government party to assert that the right to negotiate does not apply by means of the expedited procedure, but it also enables any of the negotiation parties to seek arbitration six months after the notification day. As already noted, the Act allows intervention by the Commonwealth Attorney-General where the Tribunal has not made a determination after six months of the application for arbitration.

18. The Act also prescribes the manner in which the Tribunal must operate. Subsection 109(1) provides that the Tribunal “must pursue the objective of carrying out is functions in a fair, just, economical, informal and prompt way.”

19. When considering whether to grant an adjournment or an extension of time for compliance with directions, the Tribunal is entitled to take into account the broader public interest in ensuring that the large numbers of matters before the Tribunal are disposed of in an orderly and timely way.  In Sali v SPC Ltd (1993) 116 ALR 625 Brennan, Deane and McHugh JJ said (at 629):

    “In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties.  As Deane J pointed out in Squire v Rogers this ‘may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing’.  What might be perceived as an injustice  to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.”

20. Consideration should also be given to the recent High Court decision of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. French CJ referred to Sali v SPC Ltd and then said (190-191/[27]):

    “The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court’s lists.  However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur.  In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn.”

21. French CJ then referred to the earlier High Court decision of Queensland v JL Holdings  Pty Ltd (1997) 189 CLR 146, and in particular to the principle that case management is not an end in itself but an aid for ensuring the prompt and efficient disposal of litigation. The Court then went on to emphasise that the ultimate aim of a court is the attainment of justice, and that case management could not be allowed to supplant that aim. French CJ then said (192/[30]):

    “It might be thought a truism that ‘case management principles’ should not supplant the objective of doing justice between the parties according to law.  Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502.  Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for variation of fixed trial dates resulting in the resetting of interlocutory processes.”

22. The above quotations highlight that, 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 procedure objection applications and “right to negotiate” arbitrations every year. This workload is particularly heavy in Western Australia and Queensland. The Tribunal has relatively few Members and staff to carry out not only these 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 processes 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 compliance, 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 recognising the resource, logistic and cultural issues that often intrude and complicate the collection of evidence.

24. However, the Act is drafted with the clear aim of the Tribunal disposing of future act inquiries in a timely way. Where directions are set, with the concurrence of the parties, it is in the interests of justice that those directions 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.

25. In these circumstances the request by the native title parties for amending the Directions to allow more time for the collection of witness statements is declined. In particular I have taken into account the following considerations:

    (a)   the Directions have previously been amended to allow more time for the native title parties to comply;

    (b)   the  application is opposed by the grantee party;

    (c) the proposed extension of time for compliance would result in the Tribunal being unable to make a determination within the 6 months time period envisaged by s.36;

    (d) participation by a party in a s.150 conference which that party has requested is not a basis for seeking an extension of time for compliance;

    (e)   the suggestion by the representative of the native title parties that the representative of the grantee party has engaged in “sharp practice” is not, of itself, grounds for seeking an extension of time;

    (f)    the grounds adduced by the native title parties for an extension of time were not new, but a reiteration of previous submissions; and

    (g) the interests of justice are not served by granting extensions of time for compliance, where the cumulative effect of such grants is the inability of the Tribunal to meet the requirement of s.36(1) that “the arbitral body must take all reasonable steps to make a determination in relation to the act as soon as practicable.”

Decision

1. The application by the native title parties for amending the compliance dates for the Directions made on 22 September 2010, as amended on 22 November 2010, is refused.

John Sosso

Deputy President