Wilma Freddie and Others on behalf of the Wiluna People/Western Australia/Robin Christopher Cooper

[2008] NNTTA 7

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie and Others on behalf of the Wiluna People/Western Australia/Robin Christopher Cooper, [2008] NNTTA 7 (18 January 2008)

Application No:                  WO07/776

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-

Robin Christopher Cooper (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  The Hon C J Sumner, Deputy President
Place:  Perth
Date:  18 January 2008

Catchwords:   Native title – future act – proposed grant of exploration licence - expedited procedure objection application – failure within a reasonable time to proceed with objection application – failure to comply with directions – objection application dismissed.

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

Cases:Arthur Que Noy and Ors on behalf of the Wagiman, Warai and Kamu Peoples/Northern Territory/Biddlecombe Pty Ltd, NNTT DO02/47, [2002] NNTTA 165 (13 August 2002), John Sosso

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

Counsel for the

native title party:               Mr Joe Fardin, Central Desert Native Title Services

Representative of the        

native title party:               Ms Michelle Alexander, Central Desert Native Title Services

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

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

Representative of the        

grantee party:  Mr Robin Christopher Cooper

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 11 April 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E53/1303 (‘the proposed licence’) to Robin Christopher Cooper (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).

2. On 9 August 2007, Wilma Freddie and Others on behalf of the Wiluna People – Native Title Claim No. WC99/24 registered on 24 September 1999 – (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant Facts

1. The Tribunal made directions on 28 August 2007 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 affidavits on or before 10 December 2007. 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.

2. At the first preliminary conference convened on 11 September 2007, the grantee party, Mr Robin Cooper, advised he would be willing to consider the alternative heritage agreement preferred by the Wiluna People.  However, following further discussions the Tribunal was advised at an adjourned status conference on 5 December 2007 that the grantee party was not willing to sign the native title party’s preferred agreement.  The representative for the native title party requested that the matter proceed to inquiry and sought an amendment to directions to enable sufficient time for the native title party to prepare contentions and collect affidavit evidence.  The grantee and Government parties consented to the request and accordingly I amended directions to require native title party compliance by 24 December 2007. Parties were advised in writing of this amendment on 7 December 2007.

3. The Government party has complied with amended directions and the grantee party has indicated its intention to rely on the Government party’s submissions.  To date no contentions and evidence have been received from the native title party and on 2 January 2008, its representative, Ms Michelle Alexander, advised in writing that the native title party was unable to comply and would not be making any submissions.

4. On 17 January 2008 the Tribunal convened a listing hearing at which the native title party representative, Mr Joe Fardin, confirmed Ms Alexander’s previous notice and further advised that Central Desert Native Title Services had been unable to obtain instructions from the Wiluna People to withdraw the objection. The Government party requested that the objection be dismissed pursuant to s 148(b) of the Act on the grounds that the native title party had failed to comply with a direction of the Tribunal. Neither the native title party nor the grantee party opposed the Government party’s submission.

5. 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 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 the Central Desert Native Title Services (‘Central Desert’) the recognised native title service provider for the area of the claim which has special responsibility for representing claimants in relation to native title determination proceedings and associated future acts. Central Desert and its legal representatives would be 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. The native title party applied for one extension of time which was granted by the Tribunal, with the consent of the Government party and grantee party, and Central Desert has advised that notwithstanding the amendment to directions it has not been able to gain instructions and is still not in a position to comply.

6. In Arthur Que Noy and Ors on behalf of the Wagiman, Warai and Kamu Peoples/Northern Territory/Biddlecombe Pty Ltd, NNTT DO02/47, [2002] NNTTA 165 (13 August 2002), John Sosso (‘Biddlecombe’), Member Sosso considered circumstances similar to those in the present matter.  In Biddlecombe the native title party advised the Tribunal on its due date for compliance with directions that it would not be in a position to comply and that there was no prospect of being able to seek instructions to facilitate the gathering of affidavit evidence within a reasonable time (paras [6]-[8]).  As in this matter, the native title party did not oppose dismissal and I adopt Member Sosso’s findings at para [9] for the purposes of this matter.

7. Taking all these factors into account, I find that the native title party has failed to comply with a direction by the Tribunal having submitted no statements of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.  In making my decision I also take into account that the Government party intends to impose an extra condition on the grant of the proposed licence requiring that the grantee party, if so requested by the Wiluna People within ninety days of the grant of the proposed licence, shall within thirty days of the request execute the RSHA endorsed by peak industry groups and the former Ngaanyatjarra Council in favour of the Wiluna People in respect of the area covered by the proposed licence.  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. 

Decision

1. The objection application WO07/776 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
18 January 2008