Robert Flanagan (Mullewa Wadjari Community)/Western Australia/ Buddadoo Metals Pty Ltd

[2008] NNTTA 46

NATIONAL NATIVE TITLE TRIBUNAL

Robert Flanagan (Mullewa Wadjari Community)/Western Australia/ Buddadoo Metals Pty Ltd, [2008] NNTTA 46 (11 April 2008)

Application No:        WO07/829

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

-and-

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

Robert Flanagan on behalf of the Mullewa Wadjari Community
  (native title party)
-and-

The State of Western Australia   (government party)

-and-

Buddadoo Metals Pty Ltd   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Deputy President, John Sosso
Place:  Brisbane
Date of dismissal:              10 April 2008
Date of reasons:                 11 April 2008

Hearing date:  10 April 2008

Representatives:

Native title party:              Ms Richardene Dangor, Desert Management Pty Ltd

Mr Jerome Frewen, Desert Management Pty Ltd

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

Ms Jan Mason, Department of Industry and Resources

Grantee party:                   Mr Christopher Clegg, Statewide Tenement & Advisory        Services          Pty Ltd

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – expedited procedure objection application dismissed.

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

Cases:Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/ Geotech International Pty Ltd, [2008] NNTTA 41 (4 April 2008), Deputy President Sumner

Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 18 July 2007, the Government party gave notice under section 29 of the Native Title Act1993 (Cth) (’the Act’) of its intention to grant exploration licence E59/1350 (‘the proposed tenement’) to Buddadoo Metals Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 27 August 2007, Robert Flanagan on behalf of the Mullewa Wadjari Community (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed tenement.

Relevant Facts

1. On 12 September 2007 Deputy President Sumner accepted the expedited procedure objection application. On this date the Tribunal also made directions 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 17 March 2008. The directions contain a statement that an objection may be dismissed pursuant to section 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. On 25 September 2007 a preliminary conference was convened at which the representative for the grantee party indicated that their client would consider negotiation based on the alternative heritage agreement proposed by the Mullewa Wadjari Community but that significant concessions would be required. The native title party representative did not attend the preliminary conference but was subsequently advised in writing of the grantee party’s position.

3. At adjourned preliminary conferences convened on 20 November and 11 December 2007 the grantee party representative indicated that the alternative heritage agreement proposed by the native title party would be acceptable to the grantee party, subject to the removal of an obligation to make certain payments.. The native title party’s representative was to seek instructions as to whether this proposal was acceptable but at a further adjourned preliminary conference on 29 January 2008, the grantee party’s representative indicated that its counter proposal was not acceptable to the native title party and requested that the objection application proceed to hearing.  The Government party supported the grantee party’s position and the native title party representative did not oppose it.

4. On 4 March 2008 the Government party sought an extension of one week for compliance with the directions of 12 September 2007. All parties subsequently agreed to the request and Deputy President Sumner amended directions to require compliance by each of the parties as follows:

   (a)Government party 17 March 2008;

   (b)Native title party 25 March 2008; and

   (c)Grantee party 1 April 2008.

The parties were advised on 6 March 2008, in writing, of this amendment and of the revised date for the Listing Hearing.

1. The Government party complied with amended directions on 7 March 2008. To date, however, the native title party has failed to comply with the Directions and has not provided to the Tribunal or the other parties its statement of contentions or related documentation.

2. On 8 April 2008 the grantee party’s representative, Mr Christopher Clegg, advised both the Tribunal and the other parties that an application would be made at the Listings Hearing for the dismissal of the expedited procedure objection application pursuant to section 148(b) of the Act.

3. On 3 April 2008 I was appointed as the Member to conduct the Inquiry and on 10 April 2008 I convened an a Listing Hearing at which time the grantee party formally sought that the Tribunal dismiss the expedited procedure objection application. This submission was supported by the Government party. Despite being given written notification of the Listings Hearing on 6 March, 26 March and 8 April 2008, the native title party’s representative did not attend.  Mr Clegg and the representative for the Government party, Ms Jan Mason, further confirmed their belief that the native title party had been provided with adequate time to prepare for an Inquiry, and that given past practice even if a further opportunity to comply was afforded to the native title party, it would still be unlikely to make submissions.  

4. In Teelow v Page (2001) 166 FLR 266 (at [13]) I set out the principles applicable when considering dismissal of an objection application under section 148(b) of the Act which I have had regard to in this matter. In this matter I have, in particular, had regard to the following matters:

   (d)the native title party is represented and is not in a position of inequality of bargaining power;

   (e)the grantee party has not adopted a path of non-negotiation but instead has attempted to reach an accord;

   (f)the representative of the native title party has been fully informed by the Tribunal of compliance  hearing dates but has chosen to ignore those dates and not participate in the Inquiry;

   (g)the failure of the native title party to comply with the Directions has resulted in the elongation of proceedings, which in turn, has a deleterious financial impact on the grantee party;

   (h)there has been a recent history of the native title party not complying with Tribunal directions in expedited procedure objection inquiries when negotiations have foundered with grantee parties. In  this regard I note the findings of Deputy President Sumner in Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Geotech International Pty Ltd [2008] NNTTA 41 (4 April 2008); and

   (i)the obligation imposed on the Tribunal to conduct expedited procedure objection inquiries to ensure that objection applications are heard as soon as is practicable and fair.  The assertion of the expedited procedure by a government party is an assertion that the right to negotiate does not apply. Until the Tribunal determines if the expedited procedure is attracted or not, there is no obligation on either a government or grantee party to negotiate in good faith with a native title party. Nonetheless the Tribunal, as a matter of common sense, allows the parties time to discuss issues, and where possible, reach an accord. This is not only in the interests of the parties, but allows the grant of exploration tenements to proceed in a streamlined fashion. Nonetheless where negotiations fail or negotiations become elongated, the Tribunal is obliged to conduct a hearing. If any of the parties fail to comply with directions, the Tribunal is likewise required to take appropriate action at the first appropriate opportunity. 

5. I am satisfied in this matter that there is no realistic prospect of the native title party complying with the Directions of the Tribunal.  This is not the case of denying the native title party further time, which time would be used productively in an endeavour to support the expedited procedure objection application which it has made. Rather it is the clear recognition that the native title party, through its representatives, has chosen once negotiations failed with the grantee party, to absent itself from this process.  The Tribunal cannot allow the objection process to stall simply because one of the parties chooses to ignore Directions. Not only does this disadvantage the other parties, but it provides an incentive for non-compliance.

6. Taking all of these matters into account, I find that the native title party has failed, within a reasonable time, to comply with the Tribunal’s directions having submitted no statements of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.

Decision

1. The applicant (native title party) has failed to comply with a Direction by the Tribunal and accordingly the objection application WO07/829 is dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Deputy President