Western Australia/Wilma Freddie/Anthony Cross and Deague Holdings Pty Ltd

[2000] NNTTA 235

NATIONAL NATIVE TITLE TRIBUNAL

Western Australia/Wilma Freddie/Anthony Cross and Deague Holdings Pty Ltd, [2000] NNTTA 235 (21 June 2000)

Application No: WO99/273

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

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IN THE MATTER  an inquiry in to an objection to inclusion in an expedited procedure

State of Western Australia (Government Party)

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Wilma Freddie (Native Title Party)

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Anthony Cross and Deague Holdings Pty Ltd (Grantee Party)

REASONS FOR A DETERMINATION

Tribunal:                   Hon E M Franklyn QC

Place:  Perth
Date:  21 June 2000

Catchwords:             Dismissal for unreasonable delay – Directions to provide statement of evidence – following extensions of time for delivery of statement of evidence a general outline of proposed evidence delivered – outline deficient in factual material – protest against dismissal on grounds that an outline of evidence accepted in another case despite direction that statement of evidence be delivered – different circumstances in each case – exercise of discretion.

Legislation: Native Title Act 1993 1993 (Cwlth) s 148(b)

REASONS:
On or about the 16 June 1999 a Notice was issued pursuant to s 29 of the Native Title Act 1993 (‘the Act’) advising the State’s intention to grant Exploration Licence 53/582 to the Grantee and stating that the act attracted the expedited procedure. On 18 October 1999 the Native Title Party (‘the Objector’) lodged objection pursuant to s 32 of the Act alleging that the grant would contravene each of paragraphs (a), (b) and (c) of s 237. On or about the 25 October 1999 the Tribunal sent to the parties a set of proposed directions for their consideration and convened a preliminary conference for the 4 November 1999. The Objector’s representative Mr Michael Rynne was not available and the matter was adjourned to the 24 November 1999. From advice given to the Tribunal it seems that, in the interim, the Grantee had been endeavouring to achieve an agreement with the Objector. The preliminary hearing was again adjourned to the 7 December 1999 when the Tribunal was advised that no agreement had been achieved. On that date, by consent, directions in terms of the draft directions were made, but with different dates for compliance. Each party was directed to provide to the Tribunal and each other party a statement of its contentions and documents relevant to the inquiry. It was the accepted practice and understanding that the word ‘documents’ as used in the directions included affidavits or statements of evidence on which the parties intended to rely. It was further directed that if the Objector or Grantee proposed to give oral evidence an outline of that evidence was also to be provided. The State was to comply with the directions affecting it on or before 6 January 2000 and the Objector and Grantee on or before 25 January 2000. Legal submissions were to be provided by all parties by 1 February 2000. The directions expressly directed attention to the provisions of s 148(b) of the Act relating to failure by the Native Title Party to comply within a reasonable with a direction of the Tribunal. The State’s compliance was late, its documents not being received until 21 January 2000. The Objector’s documents were also late, being received on 1 February 2000. The Grantee initially advised it would rely on the State’s contentions and documents but, on 14 February 2000, lodged its own contentions. In a letter dated 28 January 2000 accompanying the lodging of its documents the Objector advised that the only other documents it intended to file were affidavits supporting its contentions and that only if no agreement between the parties was earlier achieved. It claimed a right to consider the Grantee’s contentions before determining how to further proceed, expressing concern despite its consent to the directions, to its ability to prepare and lodge affidavits within the timeframe directed due to uncertainty as to its funding resources. It pointed out that the affidavits had to be sworn in the country and that members of the claim group were presently involved in law business but stated that its representatives were addressing that matter with a view to expeditious progress. It also sought a s 150 conference prior to hearing. At a Listing Hearing held 1 February 2000 the Objector’s representative stated that he would advise the Tribunal whether the Objector’s evidence would be by affidavit or oral. The requested s 150 conference was held on 6 February 2000 and adjourned to enable the parties to confer with a view to agreement. By letter dated 28 March 2000 the Tribunal Member conducting the conference advised that it had been concluded without agreement being reached. A further Listing Hearing was convened on 3 April 2000 by the Member appointed to conduct the inquiry, at which all parties were represented. No indication of the evidence to be led by the Native Title Party or the Grantee had then been received. The need for evidence on the part of the Objector was discussed, the lapse of time since the direction of the 7/12/99 hearing during which there had been no apparent attempt by the Objector to provide evidence by affidavit or statement was adverted to, and the provisions of s 148(b) were again drawn to the attention of the Objector. The Objector’s representative pointed out that recent flooding in the relevant area had provided difficulties of travel and access to witnesses to secure affidavits, but did not give any satisfactory reason for the evidentiary requirements of the directions not having been earlier attended to. The problems associated with access to the proposed witnesses were discussed and directions made on the basis of the Objector’s representative’s assessment of a safe period of time to permit compliance. The first direction required the Objector to provide to the Tribunal and other parties on or before 15 May 2000 a statement of the evidence of any witness it proposed to rely upon and, if not proposing to call that witness, the same to be verified by affidavit. The second direction, directed to the Grantee, was made in identical terms to the first direction save that the date for compliance for the Grantee was the 29 May 2000. Liberty to apply for a variation was provided for. By letter dated 10 May 2000 the Objector’s solicitor and representative, Mr Rynne, sought an extension of time for compliance with the first direction of 3 April 2000. His letter expressed the reason for the extension to be ‘for the purposes of providing more detailed information of the nature of the evidence the Native Title Party and the persons who will give evidence’. The reasons for the request were given in the letter, the thrust of which were that the Objector’s representative needed to visit the site to identify sites and receive specific directions from the Native Title Party and that research activity by a retained Anthropologist had been hampered by weather and the lack of resources. This letter of 10 May 2000 was addressed to the Case Manager and received by the Tribunal on the 12 May 2000. Unfortunately, it was not referred to the Case Manager until 17 May 2000 and to the Member dealing with the inquiry until the 23 May 2000. The Grantee was advised of the request and indicated that he opposed any extension. He pointed out that his ability to comply with directions directed to him on the 3 April 2000 would be compromised. By letter, copied to Mr Rynne for the Objector, the Grantee advised that the tenement is about 15km from Lorna Glen station house and situated next to a bore which was linked by a track to the station house and so was readily locatable. He expressed concern at the lack of action by the Objectors and at the continuing delay.

A hearing to consider the extension application was held on Tuesday 3 May 2000. Mr Rynne for the Objectors advised weather conditions had not been conducive to an earlier meeting between the claimants and the Anthropologist whom they had retained to inspect the site and who did not reside in Wiluna, but that a meeting with the Anthropologist had been arranged for the following week. His attention was drawn to the Grantee’s statement as to the location of the tenement and was asked why the Objector could not have obtained access to it. Mr Rynne explained that the Field Officer for the Aboriginal Corporation usually goes with the claimants to the tenement to identify its location using a global positioning system, but resided at Jiggalong and had not been available. He said ‘Those are the only instructions I have’. It was relevant to the application that it was not claimed that access to the site was prevented due to the weather conditions but because of the unavailability of the Field Officer of the Corporation. The application for extension was not supported by either the State or the Grantee, each of whom pointed out that when an objection is lodged the Objector should be in a position to support it. With that proposition I agree. The Objection in this case was lodged in October 1999. It was further pointed to Mr Rynne that the application for extension did not go to the facts of the lack of compliance. Mr Rynne then advised that the Anthropologist was due to go to the tenement on 8 June 2000. After some further discussion a direction was made that the time for compliance be extended to 12 June 2000 and that if the direction of 3 April 2000 was not then complied with the objection would be dismissed under s 148(b), there already having been ample time for the relevant inspections to have been made and statements of evidence prepared even allowing for the period of flooding and bad weather.

By letter dated 11 June 2000, lodged with the Tribunal on 12 June 2000, Mr Rynne advised that the Native Title Party proposed to call two witnesses, namely Billy Patch and Norman Thompson, and requested that the hearing be conducted on the tenement.  The letter then stated:
           ‘(iii)     The evidence of the witness (sic) is:-

(a)Interference with community activities:-

(1)The witnesses will outline the composition of community whose activities are likely to be interfered with and the usual community activities.  Alternatively should evidence of that have been led in previous hearings then the objector will seek to enter the transcript of that into this hearing.

(2)The proposed act is likely to interfere with the hunting and camping and bush tucker activities of the claimant group.  The evidence will outline how the claimant group access the area for camping and hunting and bush tucker gathering.

(b)Interference with areas or sites of particular significance:-

(1)The area is part of the Lorna Glen pastoral station.  This station is of particular significance to the claim group due to the cultural richness of its landscape.  The claim group is presently attempting to secure its ownership through utilising the services of the Indigenous Land Corporation.

(2)To the north of the tenement is a Nyii-Nyii site and of close vicinity to the tenement are a number of Wati Marlu sites.  Wati Marlu sites are particularly significant amongst sites because of particular mens business and the objectors will seek to have cultural restricts to the access to this evidence.

(3)The Wati Marlu moved back and forth between the sites to the north and south of the lands covered by the tenement, during their journeys they made the landscape.  The Wati Marlu is a particularly significant dreaming.

(4)The area is of particular significance as it is an area occupied by the particularly significant spiritual beings and also as it is distinct from an area of the claim that is not or has not been occupied by the spiritual beings.

(5)The act is likely to interfere with the area as the activity of the grantee allowed pursuant to the exploration licence is likely to create physical disturbance to the area thereby damaging places the spiritual beings made and left behind.  This disturbance interferes with the integrity of the stories and about those spiritual beings as told by Elders responsible, in accordance with traditional law and custom, for the maintenance and preservation of those stories.’

It is quite clear in my opinion that it has been open to the Objectors to provide a statement from witnesses as to what are the community and social activities of the holders of native title and what are the sites and areas of particular significance which they allege in their objection will be directly interfered with by the grant.  The objection itself is predicated on their knowledge of such activities sites and areas. 

Paragraph (a)(1) of the alleged statement of evidence provides no evidence at all in that regard and gives the State and the Grantee no opportunity to consider the evidence to be relied on and prepare a case to meet such evidence.  It is not a statement or even a meaningful outline of proposed evidence.  The same comment in my opinion applies to paragraph (a)(2) which, in its first sentence, is in the form of a contention rather than a statement of evidence.  It does allege there to be hunting, camping and bush tucker activities but has no evidentiary value in identifying the same nor when, where or how the tenement is said to be accessed.  Paragraph (b)(1) is essentially no more than a contention that the area is of particular significance.  It does not allege that to be so in accordance with the relevant traditions.  The expression ‘cultural richness of its landscape’, without more, has no evidentiary significance.  The claim of likely interference with areas or sites of particular significance was first made in October 1999 in the objection.  It must be assumed it was made with knowledge of what the areas or sites were.  That follows from the use of the word ‘particular significance’.  There has been no acceptable reason advanced as to why no statement could be made identifying the nature and approximate location of any such area or site.  In my view, if there is a site of relevant particular significance it follows that it is capable of identification.  However, even if the location of the tenement was an issue there has been ample opportunity to the claimants to identify it or to have it identified in relation to any such sites or areas, even allowing for the periods of flooding.  Paragraphs (b)(2) & (3)  refer to sites by particular names said to be of particular significance but, beyond saying the Wati Marlu sites are in close vicinity to the tenement, provides no evidence to identify their particular significance, location or distance from the tenement nor the areas of the claimed movements of the Wati Marlu.  Paragraph (b)(4) & (5) are no more than contentions, the meaning and effect of paragraph 4 being indeed virtually impenetrable.

As the parties representatives are aware, the purpose of the directions in providing for the statements of evidence of the Native Title Party witnesses to be made available prior to the statements of evidence on behalf of the Grantee, is to enable the Tribunal, the Grantee and the State to be informed of the factual basis of the objections.  The Grantee is then in a position to determine whether or not to oppose the objection, to consent to a determination, to seek leave to cross examine or bring evidence to contradict that of the witness.  The form of the alleged evidence as set out in the letter of 11 June 2000 deprives the Grantee of that opportunity and removes the possibility of a consent determination that the expedited procedure is not attracted.  It consequently adds to the delay and the cost.  The Tribunal is also left unappraised of the factual basis of the objection.  In short, the purpose of the preliminary hearings is frustrated and delay and costs are unnecessarily incurred. 

The Native Title Party protests against the dismissal under s 148(b) of the Act on the grounds that the Tribunal, in another matter (WO99/285), exercised its discretion to accept, as sufficient compliance with a similar direction, a letter to the Tribunal, the State, and the Grantee, dated 11 June 2000 from its solicitor Mr Rynne couched in relatively similar terms to that of the 11 June 2000 in WO99/273. A significant difference in the two proceedings is that in WO99/285 the Grantee has made clear to the Tribunal that he is not interested in attending any of the listing or other hearings held to date, has failed to acknowledge phone or mail messages and has failed to lodge any statement of evidence or even any contentions. He has been advised by mail and telephone message of each hearing date and its purpose and of each direction made. On the occasion of each conference and preliminary hearing he has been contacted by telephone to be a party thereto by teleconference but has failed to take part. He has been advised of the result of each hearing but on no occasion has he made a response. No submissions in law or otherwise have been made by him and he has made no request for information. Copies of all documents filed by the State and the Native Title Party have been served on him. In short to date he has shown no interest whatsoever in the proceedings WO99/285. Those factors are relevant to my decision in the case of the application for extension in WO99/285. In that case the Native Title Party had failed to comply with a direction made on 4 April 2000 that it comply with directions made on 23 February 2000 on or before the 15 May 2000. It is of relevance in that case that, on the 8 March 2000, in purported compliance with the direction of 23 February 2000, the Native Title Party advised the names of two witnesses who would give evidence on its behalf and, although in somewhat general terms a statement of the nature of the evidence they would respectively give. The statement contained far greater particularity than is provided in the present matter. The statement advised that Darren Farmer, a member of the claim group, would present evidence, that the majority of the members of the claim group lived in and around the township of Wiluna, that it comprised the majority of the people who live in the claim area, that the community life of that claim group is in accordance with traditional laws and customs, one of which requires persons responsible for country to give permission to enter on to it, that the community activities comprised, amongst others, regular hunting and gathering through the claim area and other matters not directly relevant to paragraphs (a), (b) and (c) of s 273. It stated that the second witness, Frankie Wongawol, is a person entitled to speak for the area of the grant but cannot adequately determine that area from maps and was then presently unable to access the area to identify it because of rain. He would give evidence that there are at least three dreamings of particular significance associated with the area of the tenement, they being Wati, Kutujara, Karlya, Tjakalukulu, the second statement said that he could not speak as to sites of particular significance without a site inspection. It is obvious that the purported compliance in that case was far greater, in an evidentiary sense, than in the present case. At a hearing on 4 April 2000 in that matter Mr Rynne advised that he proposed to call those two witnesses and requested that the matter be heard on country, to which the State agreed. Mr Rynne further advised that Darren Farmer was presently in Jiggalong but would probably supply evidence by affidavit when, weather permitting, he came into Wiluna and that Frankie Wongawol had been ill in hospital but would probably provide oral evidence. He said that it was intended that Mr Wongawol identify sites on the tenement area but could not do so from a map and needs to be driven to the site. He was usually driven, he said, by Mr Farmer. There was discussion as to the need for statements of evidence to be provided, it being pointed out that the statements made available did not comply with the earlier direction. Directions were then made that the Native Title Party comply with direction 2 of those made on 23 February 2000 on or before the 15 May 2000 in lieu of the 8 March 2000. It was pointed out at the hearing that as at the 30 March 2000 the State had not served its documents on the Native Title Party but the same had since been received by Mr Rynne. Nothing had been filed or served by the Grantee. The hearing was adjourned to 15 May 2000 on which date the Native Title Party had still not complied with the direction and requested a further extension of time. It was submitted that to prepare the directed statement of evidence the Native Title Party required to be physically on the tenement but it had been too wet to get there, that Frankie Wongawol had been out of hospital for two weeks and it had been planned for an Anthropologist to visit the area but costs had prevented getting all the claimants to Wiluna. Mr Rynne advised however that he could supply the evidence within 14 days of the 29 May 2000. The State advised that it did not oppose the extension and consequently an extension to the 12 June 2000 was allowed for compliance with the direction. It was agreed that a hearing date would be fixed on 12 June 2000.

On 12 June 2000 the said letter dated 11 June 2000 was received by the Tribunal from Mr Rynne.  It advised that it was proposed to call only one witness, Frankie Wongawol, and that Darren Farmer no longer resided in the claim area.  It set out the evidence to be given by Mr Wongawol as follows:-
           ‘(iii)     The evidence of the witness is:-

(a)Interference with community activities:-

(1)The proposed act is likely to interfere with the hunting and camping and bush tucker activities of the claimant group.  The evidence will outline how the claimant group access the area for camping, hunting and bush tucker gathering.  The witness will also provide the evidence originally intended to be provided by Mr Farmer save that the community visit is now planned for the later part of 2000.

(b)Interference with areas or sites of particular significance:-

(1)The area and its surrounds are associated with dreamings: Wati, Kutujara, Karlya.  The dreamings form part of the beliefs of the claimant group.  Each of the dreamings represent the activities of spiritual beings.  In carrying out those activities the spiritual beings transverse a broad area.

(2)The area is of particular significance as it is an area occupied by the spiritual beings as distinct from an area of the claim that is not or has not been occupied by the spiritual beings.

(3)The act is likely to interfere with the area as the activity of the grantee allowed pursuant to the exploration licence is likely to create physical disturbance to the area.  This disturbance interferes with the integrity of the stories about those spiritual beings as told by Elders responsible, in accordance with traditional law and custom, for the maintenance and preservation of those stories.

At the hearing on 12 June 2000 the Tribunal advised Mr Rynne that it would accept the evidence as set out in that letter as sufficient compliance with the direction on the basis that the evidence to be led at the hearing would be restricted to the matters raised in the outline of evidence there contained.  There was no objection by the State and a hearing date was fixed for the 4 July 2000 on the tenement approximately 2½ hours drive from Wiluna.  Mr Rynne was given leave to lodge affidavits of the evidence of the Native Title Party prior to the hearing date if he so chose.  The State had advised that it did not propose to lead evidence at the hearing.  The Grantee was advised of the listed date.  No response has been received from him.  Subsequently the Crown asked that the date be varied to a date in the week commencing the 10 July 2000.  The Grantee was advised of that request but to date has not responded. 

It is of relevance that in both the present case and WO99/285 the letters on which the Native Title Party relies for its protest were each delivered to the Tribunal on 12 June 2000.  It follows that the decision in WO99/285 could not have created any expectation of a similar decision in the present case.

Because of the background circumstances of WO99/285 as stated above, the lack of any objection and indeed of any apparent interest in participating in these proceedings on the part of the Grantee, the agreement of the Crown to the extensions requested, the fact that it does not propose to call evidence, and because the material provided by the Native Title Party, if supported by evidence at the hearing, reveals a case for a determination that the expedited procedure does not apply, and taking also into account the earlier attempt to comply on 8 March 2000 and the obligation of the Tribunal to act in a fair, just, economical and prompt way, the Tribunal exercised its discretion in WO99/285 to accept the material produced in the said letter as sufficient compliance with the direction and listed the matter for hearing.  The factors that led to that exercise of discretion are not present in the present case WO99/273 and that exercise of discretion provides no ground for revoking the dismissal of WO99/273.

DETERMINATION:
The Objectors’ expedited procedure objection application WO99/273 is dismissed pursuant to s 148(b) of the Native Title Act.

Hon E.M. Franklyn Q.C
Deputy President
21 June 2000