Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/ Geotech International Pty Ltd

[2008] NNTTA 41

NATIONAL NATIVE TITLE TRIBUNAL

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

Application No:         WO07/828

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 – WC96/93 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Geotech International Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:                3 April 2008
Date of reasons:                   4 April 2008

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

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

Cases:Little v Western Australia [2001] FCA 1706 (6 December 2001); (2001) 6(4) AILR 67

Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Redstone Minerals Pty Ltd; Iron Mountain Ltd; Swancove Enterprises Pty Ltd, NNTT WO05/73, WO06/3 and WO06/4 [2007] NNTTA 86 (10 October 2007), Hon C J Sumner

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

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

Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265

Hearing date:  3 April 2008

Representative of the

native title party:               Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the        

Government party:            Ms Jan Mason, Department of Industry and Resources

Representative of the        Ms Melissa Greer, Hetherington Exploration & Mining Title

grantee party:  Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 4 July 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E70/2424 (‘the proposed licence’) to Geotech International Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 2 September 2008 Robert Flanagan on behalf of the Mullewa Wadjari Community – WC96/93, registered from 19 August 1996 (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence.

Relevant Facts

1. The Tribunal made directions on 12 September 2008 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 4 March 2008. 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. On 25 September 2007 a first preliminary conference was convened at which the representative for the grantee party indicated that their client would consider the alternative heritage agreement proposed by the Mullewa Wadjari Community if a copy was provided. The native title party representative did not attend the first preliminary conference but was advised of the grantee party’s request via email.

3. At an adjourned preliminary conference convened on 23 October 2007 the grantee party representative indicated that the alternative heritage agreement proposed by the native title party would not be accepted and that the grantee party had executed an agreement with Wajarri Yamatji native title claimants, whose claim also entirely overlaps the proposed licence area.  On this basis the grantee party requested that the objection application proceed to inquiry.  The Government party supported the grantee party’s request and further requested that dates for compliance to be brought forward to enable an expeditious hearing.  The native title party representative was not in attendance but was advised by the Tribunal of parties’ positions via email and was given the opportunity to make submissions within seven days in relation to the request to amend directions.  No submissions were received by the Tribunal and the Government party proceeded to lodge its contentions and evidence as if amended directions were made as requested.  .

4. On 13 December 2007 a listing hearing was convened to consider the conduct of the inquiry.  At this conference the Government party supported by the grantee party requested that the objection be dismissed on the basis of its belief that the native title party had failed to comply with a direction of the Tribunal.  The native title party representative, Ms Richardene Dangor, requested further time to seek instructions and because the request to hasten directions of 23 October 2007 had not been formalised by way of amended directions the Tribunal acceded to Ms Dangor’s request and permitted a short further period of time in which to comply, requiring native title party compliance on or before 21 January 2008.

5. On 23 January 2008 via email to all parties and the Tribunal, Mr Jerome Frewen on behalf of the native title party requested further time in which to comply with directions on the basis that he would not be able to meet with his client to obtain instructions until early March.  The Government party and the grantee party concurred with this request and the grantee party observed that it would be unlikely to agree to any further requests to extend compliance dates.  Accordingly I amended directions requiring that the native title party provide its contentions and evidence on or before 24 March 2008.  The grantee party has submitted a short statement of contentions and advises its intention to rely on the Government party but to date neither contentions nor evidence have been lodged by the native title party.

6. On 3 April 2008 I convened an adjourned listing hearing at which time the Government party supported by the grantee party made application to dismiss the objection application pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party. Mr Frewen was in attendance and requested an extension of a further four weeks in which to comply on the basis of workload commitments and the limited capacity of the native title party following the reconstitution of the claim group.

7. In Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at [13]) the Tribunal (Member Sosso) set out the principles applicable when considering dismissal of an objection application under s 148(b) of the Act which I have had regard to in this matter. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection 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)). In this matter, the native title party was represented by Mr Jerome Frewen. Mr Frewen has been fully aware of the need to comply with Tribunal directions since 23 October 2007 to enable contentions and evidence to support the objection application to be placed before the Tribunal in a timely manner. Mr Frewen has been aware that there was no prospect of a mutually agreed outcome since this date.

8. I further observe that the native title party has failed to comply with a direction of the Tribunal in relation to three previous objections (see Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Redstone Minerals Pty Ltd; Iron Mountain Ltd; Swancove Enterprises Pty Ltd, NNTT WO05/73, WO06/3 and WO06/4 [2007] NNTTA 86 (10 October 2007), Hon C J Sumner. Taking all of these factors into account, I find that the native title party has failed 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 WO07/828 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
4 April 2008