Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Redstone Minerals Pty Ltd; Iron Mountain Ltd; Swancove Enterprises Pty Ltd

[2007] NNTTA 86

NATIONAL NATIVE TITLE TRIBUNAL

Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Redstone Minerals Pty Ltd; Iron Mountain Ltd; Swancove Enterprises Pty Ltd, [2007] NNTTA 86 (10 October 2007)

Application No:         WO05/73, WO06/3, WO06/4

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Robert Flanagan on behalf of the Mullewa Wadjari Community – WC96/93 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Redstone Minerals Pty Ltd (WO05/73)
Iron Mountain Mining Ltd (WO06/3)
Swancove Enterprises Pty Ltd (WO06/4) (grantee parties)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissals:    12 September 2007
Date of reasons:       10 October 2007

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) s 66B(1), 109, 148(b)

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

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 dates:                   31 August 2007

Representative of the

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

Representative of the        Mr Greg Abbott, Department of Industry and Resources

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On the dates specified in the attached schedule, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant certain exploration licences (‘the proposed licences’) to the grantee parties specified therein and included in the notice a statement that it considered that the grants attracted the expedited procedure.

2. On the dates specified in the attached schedule, Mr Ken Papertalk on behalf of the Mullewa Wadjari Community – Native Title Claim No WC96/93, registered from 19 August 1996 (‘the native title party’) made expedited procedure objection applications to the Tribunal in relation to the proposed licences.

Relevant Facts

1. Negotiations between parties in relation to E66/47 (WO05/73) were ongoing throughout 2005. In February 2006 the Tribunal received notice that the remaining named applicant for the Mullewa Wadjari Community’s native title determination application had passed away. The Tribunal, with the agreement of all parties, made the decision that the objections should be held in abeyance to afford the Mullewa Wadjari Community the opportunity to re-constitute the claimant group pursuant to s 66B(1). This decision was made in accordance with s 109 of the Act which provides that the Tribunal must pursue the objective of carrying out its functions in a fair and just way (s 109(1)), may take account of the cultural and customary concerns of Aboriginal people (s 109(2)) and is not bound by technicalities (s 109(3)).

2. On 31 January 2007 a Notice of Motion to amend the Mullewa Wadjari Community’s native title determination application was filed in the Federal Court.  On 2 March 2007 Justice French made orders to amend the claimant application incorporating new named applicants as follows:  Leedham Papertalk, Malcolm Papertalk, Douglas Comeagain, Robert Flanagan, Charles Collard, Charles Green, Jamie Joseph, Glenda Jackamarra, Karen Jones and Raymond Merritt.

3. On 10 April 2006 The Tribunal received a letter from Mr Malcolm Papertalk advising that the group was in the process of re-establishing key spokespersons and a working party and that this would take up to eight weeks to finalise. 

4. On 4 July 2007 a status conference was convened to consider the conduct of the inquiries.   At these conferences representatives for both grantee parties indicated that their clients would not accept the alternative heritage agreement proposed by the Mullewa Wadjari Community and requested that the objection applications proceed to inquiry.

5. In each case the Tribunal made directions on 25 July 2007, requiring all parties to provide 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 the dates specified in the attached schedule.  The native title party has in each case failed to comply by the due date.

6. At a Listing Hearing convened on 30 August 2007, the representative for the native title party, Mr Jerome Frewen, requested an extension of time to 9 October 2007 in order to provide contentions and evidence on the basis that further time was required to obtain affidavit evidence. The Government party opposed the request. All matters were adjourned to a Directions Hearing before me on 31 August 2007 at which time the Government party supported by the grantee parties made application to dismiss the objection applications pursuant to s 148(b) of the Act on the basis of non-compliance with Directions by the native title party. Mr Frewen, was not in attendance despite being advised of the date of the Directions Hearing on 30 August 2007 and making no submissions indicating his unavailability.

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 and the legal representative for the Mullewa Wadjari Community were 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. Mr Frewen has been aware that there was no prospect of a mutually agreed outcome since 4 July 2007, did not attend the Directions Hearing convened in response to the native title party’s request for an extension of time in which to comply and has provided no satisfactory explanation for its failure to comply.

8. 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 applications specified in the attached schedule are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
10 October 2007

SCHEDULE - DECISION TO DISMISS OBJECTION APPLICATIONS

Tenement No(s).	Date of Govt Party Notification (s 29 notice)	Objection Application No.	Date Objection Application Lodged	Grantee Party/ies	Grantee Rep	Date Directions Made
E66/47	9 February 2005	WO05/73	4 March 2005	Redstone Minerals Pty Ltd	Mr Ken Watson	25 July 2007
E59/1194	19 October 2005	WO06/3	4 January 2006	Iron Mountain Mining Ltd	Ms Melissa Greer	25 July 2007
E70/2653	14 December 2005	WO06/4	4 January 2006	Swancove Enterprises Pty Ltd	Ms Melissa Greer	25 July 2007