Wilma Freddie and Others on behalf of the Wiluna People/Western Australia/Gerard Victor Brewer

[2010] NNTTA 73

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie and Others on behalf of the Wiluna People/Western Australia/Gerard Victor Brewer, [2010] NNTTA 73 (31 May 2010)

Application Nos:               WO09/938, WO09/939

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

-and-

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

Wilma Freddie and Others on behalf of the Wiluna People – WC99/24 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Gerard Victor Brewer (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of decision:                24 May 2010
Date of reasons:                 31 May 2010

Catchwords:  Native title – future acts – proposed grant of prospecting licences – expedited procedure objection applications – failure to comply with directions – objection applications dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)

Cases:Wilma Freddie and Others on behalf of the Wiluna People/Western Australia/Robin Christopher Cooper, NNTT WO07/776, [2008] NNTTA 7 (18 January 2008), Hon C J Sumner

Representative of the        

native title party:              Ms Irene Assumpter Akumu, Central Desert Native Title Services Limited

Representatives of the      Mr Greg Abbott, Department of Mines and Petroleum

Government party:           Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the

grantee party:  Mr Gerard Victor Brewer

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 12 August 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P53/1496 and P53/1497 (‘the proposed licences’) to Gerard Victor Brewer (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure.

2. On 4 December 2009, Wilma Freddie and Others on behalf of the Wiluna People - (WC99/24 registered from 24 September 1999) - (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licences.

Relevant facts

1. At a preliminary conference on 12 January 2010, the grantee party, Mr Gerard Brewer, advised he had signed the Regional Standard Heritage Agreement (‘RSHA’) and would review the agreement preferred by the Wiluna People.  The grantee party was unrepresented at further conferences held on 9 February 2010, 23 February 2010 and 10 March 2010.

2. On 31 March 2010, the Government party advised that the grantee party had been informed that action had commenced to refuse the application for the proposed licences. The Government party made a direction amendment request which the grantee party supported, and feedback was sought from the native title party who was unrepresented. The direction amendment request was approved on 6 April 2010 requiring 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 affidavit on or before 10 May 2010. 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.

3. On 14 April 2010, the grantee party advised that he did not wish to sign the Wiluna preferred agreement and would like the matters to proceed to inquiry with directions to stand.  The Government party supported this request and advised the grantee party that refusal action would be suspended.  The native title party agreed to leave direction dates as amended.  The Government party has complied with directions and the grantee party has indicated its intentions to rely on the Government party’s contentions, but neither contentions nor evidence have been lodged by the native title party.  

4. On 10 May 2010, the native title representative advised the Tribunal that the native title party would not be submitting any contentions and would leave it to the Tribunal to make a decision using the information contained in the application.  

5. At a listing hearing on 20 May 2010, the native title party advised that it did not have the available resources to collect evidence for these matters and reiterated that it would like the Tribunal to make a decision on the objection applications with the information before it and on the basis of the information contained in the Form 4 objection application. The convenor referred to direction 7 and the requirement of an objector to comply with a direction of the Tribunal. The Government party requested dismissal of the objections pursuant to s 148(b) of the Native Title Act 1993 due to native title party non-compliance.  The grantee party supported the request.

Conclusion

1. The Tribunal has considered the request made by the native title party to make a decision on the information before it and the Form 4 application lodged by the native title party on 4 December 2009. The Form 4 includes statements in support of the application, including paragraph 7 which deals with the issues in s 237 of the Act. Paragraph 7 contains a reasonably detailed statement of the reasons for the native title party’s objection based on each of paragraphs (a), (b) and (c) of s 237. It is material which can be taken into account and relied upon by the Tribunal in making its determination and it could be taken to be the contentions of the native title party given the detail provided. However, without some supporting evidence the Form 4 is an inadequate basis on its own for the Tribunal to make a determination that the expedited procedure is not attracted. The Form 4 statements do not satisfy the requirements set out in the Tribunal’s directions to provide contentions supported by evidence. The directions require that documentary evidence and witness statements or affidavits be provided which has not occurred. I therefore find that the native title party has failed to comply with a direction by the Tribunal even though informed of the possible consequences of a failure to comply. I have previously considered a similar case involving the same native title party as in the present matter (see Wilma Freddie and Others on behalf of the Wiluna People/Western Australia/Robin Christopher Cooper, NNTT WO07/776, [2008] NNTTA 7 (18 January 2008)), at [7] – [9] and adopt the principles referred to therein and in the cases cited.

2. I note that the Government party intends to impose an extra condition on the grant of the proposed licences requiring that the grantee party, if so requested by the Wiluna People within ninety days of the grant of the proposed licences, shall within thirty days of the request execute in favour of the Wiluna People the RSHA endorsed by peak industry groups and the Ngaanyatjarra Land Council.  If this opportunity is taken up by the native title party this condition will at least have the effect of ensuring that that the native title party can insist on a heritage survey to protect Aboriginal heritage.

3. The native title party was aware from at least 14 April 2010 that an inquiry was required, and has failed to comply with a direction of the Tribunal.

Decision

1. Expedited procedure objection applications WO09/938 and WO09/939 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
31 May 2010