NATIONAL NATIVE TITLE TRIBUNAL

Alan Douglas Hatfield and Others on behalf of the Darumbal People v Civil & Mining Resources Pty Ltd and Another [2015] NNTTA 1 (7 January 2015)

Application Nos:	QO2014/0056 and QO2014/0064

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

-and-

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

Alan Douglas Hatfield and Others on behalf of the Darumbal People (QC2012/008)	 
	(native title party)
-and-

Civil & Mining Resources Pty Ltd                                                  	(grantee party)

-and-

The State of Queensland                                                     	   (Government party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Tribunal:	Mr JR McNamara
Place:	Brisbane
Date of dismissal:	7 January 2015
Date of reasons:	7 January 2015

Catchwords:  Native title – future act – proposed grant of exploration permit – expedited procedure objection application – failure to comply with directions – objection application dismissed

Legislation:	Native Title Act 1993 (Cth) ss 29, 30, 32, 76, 77, 148(b), 237

Cases:	Barada Kabalbara Yetimarala People v Civil & Mining Resources Pty Ltd and Another, [2014] NNTTA 93 (‘BKY v Civil & Mining Resources’)
	Page v Northern Territory of Australia 174 FLR 371; [2003] NNTTA 9 (‘Page v Northern Territory’)
Dixon and Others v Northern Territory of Australia and Others (2002) 169 FLR 103; [2002] NNTTA 48 (‘Dixon v Northern Territory’)
	Teelow v Page (2001) 166 FLR 266 (‘Teelow v Page’)

Representative of the	Mr Daniel Lavery, McCawley Chambers
native title party:               	

Representative of the	Mr Tim Ellis, Environment Land Heritage Pty Ltd
grantee party:

Representative of the 	Ms Kimberley Steer, Department of Natural Resources and Mines
Government party:	

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS
Background
[1]	The State of Queensland (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration permits for coal 2460 (‘the first proposed permit’) and 2390 (‘the second proposed permit’) to Civil & Mining Resources Pty Ltd (‘the grantee party’). The notification day was 18 December 2013 for the first proposed permit and 12 February 2014 for the second (see s 29(4)(a) of the Act). In each notice, the Government party included a statement that it considered that the grant attracted the expedited procedure.
[2]	An objection to the inclusion of the expedited procedure statement may be made to the National Native Title Tribunal (‘the Tribunal’) within four months after the notification day (see s 32(3) of the Act). Sections 32(3) and s 30(1)(b) of the Act explain that an objection may be lodged by any registered native title claimant in respect of the relevant land or waters who is registered at four months from the notification day provided the claim was filed before the end of three months from the notification day. The Act also provides for an objection to be lodged by a registered native title body corporate in certain circumstances (see ss 32(3) and s 30(1)(a) of the Act).
[3]	Mr Alan Douglas Hatfield and others (collectively comprising the Applicant for the native title determination application) on behalf of the Darumbal People (‘the native title party’, registered since 23 November 2012) lodged an objection application with the Tribunal in respect of the first proposed permit (QO2014/0056) on 17 April 2014. They lodged another objection application in respect of the second proposed permit (QO2014/0064) on 12 June 2014. Both objection applications were received within four months of the notification day (see s 32(3)) and I accepted them as they met the relevant requirements (see ss 76 and 77 of the Act).
[4]	At the end of the four month notification period, the first proposed permit was overlapped by the Darumbal People (46.49 per cent overlap) and the Barada Kabalbara Yetimarala People (QC2013/004; overlapping by 53.51 per cent). On 3 April 2014, the Barada Kabalbara Yetimarala lodged an objection application in respect of the first proposed permit (QO2014/0046), which was subsequently dismissed in September 2014 due to the claim having been removed from the Register of Native Title Claims (see BKY v Civil & Mining Resources).
[5]	At the end of the notification period, the second proposed permit was overlapped by the claims of the Darumbal People (75.64 per cent overlap), Barada Kabalbara Yetimarala People (QC2013/004; 24.36 per cent overlap) and Barada Kabalbara Yetimarala People #2 (QC2013/005; 8.89 per cent overlap). On 11 June 2014, the Barada Kabalbara Yetimarala People lodged an objection application (QO2014/0061) and it was later dismissed (see BKY v Civil & Mining Resources). The Barada Kabalbara Yetimarala People #2 also lodged an objection application on 11 June 2014 (QO2014/0062) which remains on foot.
Relevant facts
[6]	On 4 July 2014, the first proposed permit was discussed during the Tribunal’s monthly status conference. In subsequent status conferences on 1 August, 29 August, 26 September and 24 October 2014, both permits were discussed together. Over the course of those months, the native title party had sent a draft agreement, to which the grantee party provided proposed amendments. At the 29 August and 25 September 2014 conferences I foreshadowed my intention to set directions if agreement was not reached shortly. In the absence of any agreement or indication of an imminent agreement, I issued directions on 24 October 2014 requiring all parties to submit contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted for each proposed permit (see s 237 of the Act).
[7]	The Government party submitted its material on 21 November 2014 as required.
[8]	The native title party was to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 28 November 2014.  The directions contained a statement that an objection may be dismissed pursuant to s 148(b) of the Act if the objector failed within a reasonable time to proceed with the application or to comply with a direction of the Tribunal.
[9]	The Tribunal did not receive any material from the native title party by the compliance date. On 1 December 2014, the Tribunal emailed Mr Lavery advising that the Member might be willing to consider extending the time frame (if the native title party wished to submit material and an extension request) and informed him ‘if material is not provided and the objections remain on foot the Tribunal has little choice but to dismiss them’. On 4 December 2014, the Tribunal left Mr Lavery a voice message advising of the Tribunal’s intention to dismiss the objection applications. 
[10]	On 5 December 2014, Mr Lavery informed the Tribunal by email that he had been expecting the Government party’s contentions and had not yet received them. Soon after, the material was provided to Mr Lavery. Due to Mr Lavery’s late receipt of that material, I issued amended directions on 8 December 2014 requiring native title party compliance by 15 December 2014, along with a springing order stating that the objection shall be dismissed if the native title party does not comply by 15 December, and grantee party compliance by 22 December 2014. By email to parties on 8 December 2014, the existence and effect of the springing order was reiterated. 
[11]	 No material was received from the native title party by the required date and the Tribunal has not received an explanation nor any request for an extension. 
Decision                                                                                                                         
[12]	I have given consideration to the principles set out in Teelow v Page (at [13]) regarding dismissal of an objection application under s 148(b) of the Act, as follows:
[13] ...The exercise of the discretion vested in the Tribunal by s 148(b) to dismiss an application on the basis that the applicant has failed to comply with a direction of the Tribunal should be guided by the following principles:
(a) the exercise of the discretion should be informed by the object of the expedited procedure provisions of the Act, namely that the parties and the Tribunal are required to proceed expeditiously with a view to avoiding delays, expense and legal technicalities, and that non-compliance of Tribunal directions potentially warrants, as a matter of principle, the imposition of the sanction set out in s 148;
(b) directions are made to achieve these objectives and, accordingly, noncompliance enlivens the power vested in the Tribunal pursuant to s 148;
(c) whether the discretion vested in the Tribunal should be exercised, though, is dependent on a range of factors and circumstances that are not possible of being wholly outlined. However, one important factor, is that the right to negotiate is a valuable right that should not be lightly dispensed with, and that the Act should be interpreted in a beneficial manner for native title holders.
That aside, the discretion in s 148 is unfettered and the exercise or non-exercise of the discretion depends on all the circumstances of each case. Amongst other matters, and by no means limiting them, the Tribunal could consider:
(i) whether the failure to comply was as a result of the actions of the objectors or their representative, or due to some other cause;
(ii) whether there has been some reasonable explanation proffered for non-compliance, or rather that no explanation is given to the Tribunal. While the absence of an explanation may well prove fatal, the giving of an explanation does not of itself prevent the exercise of the discretion to strike out;
(iii) whether the failure of the applicant to comply with Tribunal directions has resulted in prejudice to other parties, and if so, the nature of that prejudice;
(iv) the history of the proceedings;
(v) the previous conduct of the applicant, such as previous failures by the applicant to comply with directions of the Tribunal;
(vi) whether the expedited procedure inquiry itself raises novel issues, or whether the inquiry is part of a series of inquiries involving the same native title party such that failure to meet direction timelines is explicable and not unreasonable;
(vii) the consequences of dismissal, particularly if the failure to comply has occurred by oversight or factors outside the control of the applicant.

[13]	 As the Tribunal noted in Page v Northern Territory at [28], ‘objection inquiries are designed to be conducted in an informal, timely and focused manner’.  Where a springing order is utilised, there are direct consequences and the order must be clear and unambiguous (see Dixon v Northern Territory at [25]). In Teelow v Page, the Tribunal explained (at [14]):
[14] ...If such a springing direction has been made, then ‘in the absence of good reasons to the contrary, there would be a presumption that the Tribunal would exercise its discretion under section 148. Conversely a springing or guillotine direction does not deprive the Tribunal of its discretion not to dismiss, and if good reasons are advanced the Tribunal may determine not to exercise its discretion – FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268. 

[14]	In the circumstances, the native title party has been given sufficient opportunity to comply with the directions of the Tribunal, the consequences of non-compliance were clearly set out within the amended directions and the 8 December 2014 email to parties and the native title party did not provide an explanation for non-compliance nor indicate that it would indeed provide material. I am of the view that further delays would not be appropriate and the circumstances support the discretion under                s 148(1)(b) to be exercised
[15]	As the native title party has failed to comply with the amended directions of 8 December 2014, objection applications QO2014/0056 and QO2014/0064 are dismissed pursuant to s 148(b) of the Act.

James McNamara
Member
7 January 2015