Robert Flanagan & Ors on behalf of the Mullewa Wadjari Community/Western Australia/Jabiru Metals Ltd
[2008] NNTTA 94
•25 July 2008
NATIONAL NATIVE TITLE TRIBUNAL
Robert Flanagan & Ors on behalf of the Mullewa Wadjari Community/Western Australia/Jabiru Metals Ltd, [2008] NNTTA 94 (25 July 2008)
Application No: WO07/869
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection application
Robert Flanagan, Leedham Papertalk, Malcolm Papertalk, Douglas Comeagain, Charles Collard, Charles Green, Jamie Joseph, Glenda Jackamarra, Karen Jones, Raymond Merritt on behalf of the Mullewa Wadjari Community
(native title party)
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The State of Western Australia (government party)
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Jabiru Metals Ltd (grantee party)
DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date of dismissal: 24 July 2008
Date of reasons: 25 July 2008
Hearing Dates: 4 December 2007, 27 February 2008, 19 March 2008, 16 April 2008, 24 July 2008.
Representatives:
Native title party: Mr Jerome Frewen, Desert Management Pty Ltd.
Government party: Mr Greg Abbott, Department of Industry and Resources.
Grantee party: Ms Victoria Twiss, Jabiru Metals Ltd.
Catchwords: Native title – future act – proposed grant of exploration licence - expedited procedure application – failure to comply with directions - objection application dismissed.
Legislation: Native Title Act 1993 (Cth) s 148(b)
Cases: Angelina Cox on behalf of the Puutu Kunti Kurrama & Pinikura People/Western Australia/Globe Uranium Ltd WO07/42 [2007] NNTTA 95 (2 November 2007) Deputy President Sumner.
Leedham Papertalk on behalf of the Mullewa Wadjari Community/Western Australia/Duketon Consolidated Ltd WO07/1228 [2008] NNTTA 91 (16 July 2008) Deputy President Sumner.
Noy v Northern Territory (2003) 174 FLR 366.
Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Redstone Minerals Pty Ltd & Ors W005/73, WO06/3, WO06/4) [2007] NNTTA 86 (10 October 2007) Deputy President Sumner.
Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Geotech International Pty Ltd WO07/828 [2008] NNTTA 41 (4 April 2008) Deputy President Sumner.
Robert Flanagan (Mullewa Wadjari Community)/Western Australia/Buddadoo Metals Pty Ltd WO07/829 [2008] NNTTA 46 (11 April 2008) Deputy President Sosso.
Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Carlinga Mining Pty Ltd WO07/928 [2008] NNTTA 69 (3 June 2008) Deputy President Sumner.
Saltmere on behalf of the Indjilandi/Dithannoi People/Queensland/Savannah Resources QO04/94 [2005] NNTTA 54 QO04/94 (5 August 2004) Member Sosso.
Teelow v Page (2001) 166 FLR 266.
Velickovic on behalf of the Widji People/Western Australia/Saunders WO05/564 [2006] NNTTA 76 (15 May 2006) Deputy President Sumner.
Western Australia v Ward (1996) 70 FCR 265.
REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION
Background
[1] On 1 August 2007 the State of Western Australia (“government party”) gave notice under section 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention, inter alia, to grant exploration licence E59/1306 (“the proposed tenement”) to Jabiru Metals Ltd (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
[2] The proposed tenement is located approximately 122 kilometres north-westerly of Yalgoo in the Shire of Murchison and comprises an area of 73.02 square kilometres. The proposed tenement is overlapped by the registered native title determination applications of the Mullewa Wadjari Community (WC96/93 – entered on the Register of Native Title Claims on 19 August 1996) (“native title party’) and the Wajarri Yamatji (WC04/10 – entered on the Register of Native Title Claims on 5 December 2005). The proposed tenement in wholly overlapped by the Wajarri Yamatji native title determination application and partially overlapped (12.7% or 928.06 hectares) by the Mullewa Wadjari Community native title determination application.
[3] On 2 September 2007 Robert Flanagan on behalf of the native title party lodged an expedited procedure objection application in relation to the proposed tenement. This application was accepted by the Tribunal on 18 September 2007. On 28 November 2007 Ike Simpson and Others on behalf of the Wajarri Yamatji (WC04/10) lodged an expedited procedure objection application in relation to the proposed tenement. This application was accepted by the Tribunal on 14 December 2007.
[4] On 18 April 2008, the President of the Tribunal (Mr. Graeme Neate) appointed me as the Member to constitute the Tribunal for the purposes of the inquiry into the expedited procedure objection applications made by the native title parties
Relevant Facts
On 18 September 2007 Deputy President Sumner made Directions in relation to the expedited procedure application made by the native title party. On or before 25 March 2008 the State was to provide the native title party and the grantee party with a statement of contentions and documents relevant to the inquiry. The native title party was to provide to the government party and grantee party its statement of contentions and relevant documents on or before 1 April 2008. Finally, the grantee party was likewise directed to provide its statement of contentions and relevant documents to the other parties by 8 April 2008.
At the request of the government party on 20 February 2008, Deputy President Sumner amended the time for lodgement of contentions and related documents such that the government party was required to comply on or before 6 May 2008, the native title party by 13 May 2008 and the grantee party by 20 May 2008.
On 29 April 2008, the Directions were further amended by again granting an extended period of time for compliance, with the government party being required to comply by 3 June 2008, the native title party by 10 June 2008 and the grantee party by 17 June 2008.
The Tribunal was informed that due to an administrative error the government party inadvertently failed to comply by the due date and requested a variation in the compliance dates. This was supported by the grantee party but the native title party did not provide the Tribunal with a response. The Tribunal determined to vary the compliance dates, with the government party to comply by 2 July 2008, the native title party by 9 July 2008 and the grantee party by 16 July 2008.
It should be noted that throughout this period of time the Tribunal was informed that negotiations were taking place with the Wajarri Yamatji (WC04/10).
Both the government party and grantee party complied with these Directions and have provided their statement of contentions (dated 23 June 2008 and 16 July 2008 respectively) together with supporting documentation.
[11] The native title party, however, has not lodged with the Tribunal its statement of contentions or any other documents that would support its objection to the government party’s assertion of the expedited procedure. This ongoing failure by the native title to comply has resulted even though Ms. Kim Axford of the Tribunal emailed all of the parties, including Mr Frewen, on both 10 July and 16 July 2008 alerting the native title party to the fact that its contentions were to be lodged by close of business 9 July 2008 and that a Listing Hearing was scheduled for 24 July 2008.
[12] The Tribunal has no record of the native title party responding to either of these email messages. On 17 July 2008 Mr Greg Abbott, on behalf of the government party, requested the dismissal of the expedited procedure objection application pursuant to s.148(b). This request was supported by Ms Victoria Twiss, on behalf of the grantee party, on 21 July 2008.
[13] Paragraph 7 of the initial Directions made on 18 September 2007 stated, inter alia:
“ … if the objector (native title party) fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal, the Tribunal may dismiss the application (s 148(b)) Native Title Act 1993 (as amended).”
Inquiry and Findings
I convened a Status Conference on 24 July 2008 in order that the parties could make submissions on the application by the government party for dismissal pursuant to s.148(b). Mr Abbott confirmed that the government party sought dismissal of the application. Mr Frewen informed the Tribunal that he had recently returned from business “on country” and due to various constraints had been unable to obtain instructions from his clients. He did not deny that the government party had emailed him advising of its dismissal application; instead he stated that due to work commitments he had not read the relevant email.
[15] The Tribunal is empowered, pursuant to s.148(b) to dismiss an expedited procedure objection application at any stage of an inquiry if “the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.” On a number of occasions the Tribunal has pointed out that it is cautious about exercising this power because “by dismissing such an application a native title party has potentially been deprived of the valuable right to negotiate which is the centrepiece of the exploration and mining Future Act regime” - Noy v Northern Territory (2003) 174 FLR 366 at 368. The principles which guide the Tribunal in exercising this power were set out in Teelow v Page (2001) 166 FLR 266 at 269. The Tribunal has adopted these principles in numerous determinations involving Western Australian expedited procedure objection applications - e.g. Velickovic on behalf of the Widji People/Western Australia/Saunders WO05/564 [2006] NNTTA 76 and Angelina Cox on behalf of the Puutu Kunti Kurrama & Pinikura People/Western Australia/Globe Uranium Ltd WO07/42 [2007] NNTTA 95. I likewise adopt those principles for the purposes of this inquiry.
[16] In this matter the following factors are of significance:
(a) the native title party is represented and is not in a position of disadvantage vis-à-vis the other parties;
(b) the grantee party has attempted to reach an accord with the native title party;
(c) the native title party has a history of non-compliance with Directions of the Tribunal resulting in dismissal under s.148(b):
oRobert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Redstone Minerals Pty Ltd & Ors W005/73, WO06/, WO)6/4 [2007] NNTTA 86;
oRobert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Geotech International Pty Ltd WO07/828 [2008] NNTTA 41;
oRobert Flanagan (Mullewa Wadjari Community)/Western Australia /Buddadoo Metals Pty Ltd WO07/829 [2008] NNTTA 46;
oRobert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Carlinga Mining Pty Ltd WO07/928 [2008] NNTTA 69: and
oLeedham Papertalk on behalf of the Mullewa Wadjari Community/Western Australia/Duketon Consolidated Ltd WO07/1228 [2008] NNTTA 91;
(d) the native title party was put on notice by the Tribunal of its non-compliance yet took no action either to remedy the non-compliance, explain the non-compliance or provide, in advance of the Status Conference, good grounds for amending the Directions and not dismissing the application pursuant to s.148(b);
(e) there have been no negotiations for some time between the native title party and the grantee party and there are, ostensibly, poor prospects that such negotiations would resume. In short, the prospects of this application settling other than by the Tribunal making a non-consensual determination are remote;
(f) the Tribunal is required to proceed as expeditiously as possible when conducting an expedited procedure objection inquiry – Saltmere on behalf of the Indjilandi/Dithannoi People/Queensland/Savannah Resources QO04/94 [2005] NNTTA 54; and
(g) the Tribunal is not satisfied that if it amended the Directions to give further time to the native title party to comply and produce contentions and documents that it would do so, or at least in a timely manner and without further intervention.
[17] In conclusion, I am not satisfied that there is a realistic prospect of the native title party complying with the Directions of the Tribunal. I have come to this conclusion reluctantly, but it seems the inevitable conclusion that must be drawn from the material. I appreciate the resource constraints that are placed on the parties, and in particular native title parties that are privately represented. In this matter I have some sympathy for the situation outlined by Mr. Frewen. However, in an expedited procedure objection inquiry, the parties must proceed on the assumption that both the terms of the legislation, and its interpretation by the Federal Court (Western Australia v Ward (1996) 70 FCR 265 at 278 per Lee J), require that the Tribunal will deal with matters in a timely way. The Tribunal cannot allow matters to proceed on the basis that there is a right to negotiate and the parties have an unlimited period of time to reach an accord. The very assertion of the expedited procedure by the government party is an assertion that there is no right to negotiate. In this matter this is compounded by the fact that there are no extant negotiations and no reasonable prospects of them being resumed.
Decision
[18] The applicant (native title party) has failed to comply with a Direction of the Tribunal and accordingly expedited procedure objection application WO07/869 is dismissed pursuant to s.148(b) of the Native Title Act 1993 (Cth).
John Sosso
Deputy President
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