Roy Dixon (Roy Dixon for the Mijibayu, Waanyi Jambarana and Waanyi (Puzzle Creek) groups) – DC01/38/Northern Territory/Plenty River Corporation Ltd

[2001] NNTTA 146

NATIONAL NATIVE TITLE TRIBUNAL

Roy Dixon (Roy Dixon for the Mijibayu, Waanyi Jambarana and Waanyi (Puzzle Creek) groups) – DC01/38/Northern Territory/Plenty River Corporation Ltd, [2001] NNTTA 146 (10 December 2001)

Application No: DO01/52

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

-and-

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

Roy Dixon (Roy Dixon for the Mijibayu, Waanyi Jambarana and Waanyi (Puzzle Creek) groups) – DC01/38 (native title party)

-and-

The Northern Territory of Australia (Government party)

-and-

Plenty River Corporation Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Jennifer Stuckey-Clarke
Place:  Darwin
Date:  10 December 2001

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) s148(b).

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On the 21 February 2001, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant EL/9991 to Plenty River Corporation Ltd (‘the grantee party’) and included in the Notice a statement that it considered that the grant attracted the expedited procedure.

1. On 21 June 2001, Roy Dixon (Roy Dixon for the Mijibayu, Waanyi Jambarana and Waanyi (Puzzle Creek) groups) (‘the native title party’) made an expedited procedure objection application to the Tribunal.

1. On 11 July 2001 the Tribunal made directions for the conduct of the expedited procedure inquiry. These required the government party to comply by 14 November 2001, the native title party by 21 November 2001 and the grantee party by 28 November 2001.

1. On 17 July 2001 the Tribunal wrote to all parties in the following terms;
   “Further to the Preliminary Conference/Directions Hearing convened by Deputy President Sumner on Wednesday, 11 July 2001, please find enclosed Directions formally made at the meeting. The dates specified in the Directions are important and parties are required to comply with these Directions if a negotiated agreement is not reached before the date specified in paragraph one [14 November 2001]. If the Directions are not complied with by the native title party the Tribunal may dismiss the application.”

1. The government party complied with the directions on 14 November 2001. The native title party failed to comply with the directions on 21 November 2001 and at no time before the compliance date provided any warning, explanation or excuse for the non-compliance. On 28 November 2001 the grantee party complied with the directions.

1. On 23 November 2001 the grantee party wrote to the native title party asking the native title party to withdraw the objection and on 28 November 2001 the native title party wrote to the Registrar of the Tribunal in the following terms:
   “We refer to the directions made in these matters providing the Objectors to file their respective contentions by 21 November 2001.

The Northern Land Council has been unable to date to take full instructions for affidavit evidence on behalf of the Objectors for the purpose of filing with the Objector’s contentions in each of the above matters. The affidavit evidence referred to has been unable to be taken to date due to insufficient resources. The commencement of the wet season may seriously hamper efforts by the NLC to take any such instructions on behalf of the Objectors for the duration of the wet season.

Accordingly, we seek an extension of 4 months of the subject directions within which to file and serve the Objector’s contentions and affidavits(s) in support.”

1. On 29 November 2001 the grantee party wrote to Deputy President Sumner opposing the adjournment and saying:
   “A four (4) month delay will be of severe detriment to the Grantee Party as it could potentially mean the loss of the entire 2002 dry season for any exploration on these areas. Company’s (sic) such as Plenty River Corporation are required to set budgets for exploration work and, with the uncertainty as to when these ELA’s may be granted, exploration funds cannot be budgeted for them. If the extension of time is granted, as sought by the Northern Land Council. It is probable that no exploration could be carried out until 2003.”

1. I record this correspondence with various officers of the Tribunal and note three things. First, in inquiries to which I have been the member appointed, I expect any correspondence to be directed in relation to those inquiries to the case manager appointed to those inquiries, not to myself directly or to any other officer or member of the Tribunal.  Secondly, I advise that only in the most unusual and urgent circumstances will I make any significant directions ‘on the papers’ after correspondence with the parties. These inquiries are formal proceedings to the extent that directions in my matters will only be made in open hearing to which all parties will be invited and at which all parties will have the opportunity to be heard. Indeed, I will only entertain applications when they are formally made to me at the hearing. If a matter is urgent, a hearing will be called if practicable and parties can, of course, always attend by telephone. Third, in  these matters the parties saw fit to copy all inter partes correspondence to the Tribunal, some of which contained assertions which were of little or no interest to the Tribunal unless properly evidenced on a formal application. I remind parties that ‘without prejudice’ letters or letters which are not copied to the case manager will usually be a far more appropriate mode of communication inter partes.

1. At the directions hearing on 5 December 2001, the grantee party made application that the objections be dismissed under section 148(b) for non-compliance with directions. The native title party applied for a four-month adjournment. Both the government party and the grantee party said that they would consent to a two-week adjournment to enable the native title party to comply with the directions. The native title party’s legal representative Mr Rumler said he would need to take further instructions and the offer was not accepted at the hearing. I then referred the parties to Member Sosso’s decision to dismiss an application under s.148(b) in Michael Page/Northern Territory of Australia/ Michael Teelow, DO 01/22, 10 October 2001 at [13] where Member Sosso sets out the principles which govern the exercise of the discretion to dismiss for non-compliance in s.148(b) and the various factors which the Tribunal might take into account in determining whether to exercise the discretion. I ensured that all parties at the hearing were provided with a copy of the determination and then said:
   “All of the matters itemised in [13(I)-(vii)] are matters which should be or could be the subject of evidence, not simply assertions in letters sent inter partes or to the Tribunal. I put the parties on notice that I concur in what Member Sosso says in [13] and I consider that those factors are, in broad brush, the factors which the Tribunal could consider in determining whether or not it would exercise this discretion. I do not propose to determine this matter today.

What I propose to do is to reconvene this hearing very soon, having given the parties the opportunity to put on properly sworn evidence in support of the contentions made by the various parties. Now, it is a matter of course for the parties whether or not evidence is forthcoming, but if there is no persuasive evidence before me, Mr Rumler, as to the reasons why this timetable has not been complied with, or persuasive evidence as to a genuine lack of resources giving rise to non-compliance, I will have some difficulty in deciding I should not exercise the discretion.

Similarly, Mr McColl for the grantee party, I will want some evidence from you in relation to the detriment which you say you will suffer if an adjournment is granted…[There then ensued some discussion with the government party and then I concluded:] The question of lack of resources is an extremely complex one and I don’t mean, Mr Rumler, to gainsay your assertion that lack of resources is a real problem for the native title party, but what I want is some evidence upon which I am able to determine the difficult question of whether or not I exercise the discretion to dismiss the matter.”

I then made directions for the filing of affidavits by 5pm on Friday, 7 December 2001 and set the applications down for hearing on Monday, 10 December 2001.

1. In compliance with those directions, the grantee party filed the affidavit of Gary Kenneth Thompson sworn 6 December 2001. The native title party filed no evidence but on 7 December 2001 wrote to the Registrar in the following terms:
   “We refer to the directions made in these matters on Wednesday 5 December 2001.

After further consideration, we withdraw on behalf of the Objectors the respective applications for an extension of time within which to file and serve contentions in the within matters. In the circumstances, which include the capacity of the NLC to provide resources regarding these matters, the Objectors will not be filing material in support of their Objections. We assume that the NNTT will proceed to determine the Objections on that basis.”

1. On 10 December 2001 the government party filed written submissions. Paragraphs 1-15 were in support of the remaining application to dismiss the objections for non-compliance under s.148(b). The remaining paragraphs 16-18 contained alternative submissions which I do not need to rule upon since I determined at the hearing to dismiss the objections on the basis that the native title party had indicated its intention never to comply with the Tribunal directions to file material in support of the objections.

1. In my view an avowed refusal by an objector to comply at any time with the directions of the Tribunal is in itself a sufficient basis for dismissal. Further, when this avowal is considered in light of the fact that at no time before the compliance date did the native title party give notice of any difficulty it was having with respect to compliance and that even after the compliance date passed no explanation was forthcoming until demanded by the grantee party, questions arise as to the seriousness with which the native title party’s legal representatives view the inquiry process conducted by the Tribunal.

Decision

[13] The expedited procedure objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Mrs Jennifer Stuckey-Clarke
Member