Albert Little and Others on behalf of Badimia/Western Australia/Coventry Enterprises Pty Ltd

[2010] NNTTA 105

NATIONAL NATIVE TITLE TRIBUNAL

Albert Little and Others on behalf of Badimia/Western Australia/Coventry Enterprises Pty Ltd, [2010] NNTTA 105 (22 July 2010)

Application No:                 WO10/230

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

-and-

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

Albert Little and Others on behalf of Badimia – WC96/98 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Coventry Enterprises Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Hon C J Sumner, Deputy President

Place:Perth

Date of dismissal:            9 July 2010

Date of reasons:              22 July 2010

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 Act1993 (Cth) ss 29, 148(b)

Cases:Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266

Representative of the

native title party:              Ms Alissa Lovering, Yamatji Marlpa Aboriginal Corporation

Representative of the        

Government party:           Mr Greg Abbott, Department of Mines and Petroleum

Representative of the

grantee party:  Mr Kevin Heitman, Ms Betty Heitman

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 21 October 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E59/1538 (‘the proposed licence’) to Coventry Enterprises Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 21 February 2010, Albert Little and Others on behalf of Badimia – native title claim no WC96/98, registered from 4 October 1996 (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant facts

1. On 9 March 2010, the Tribunal made directions 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 21 June 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.

2. At a preliminary conference on 23 March 2010 the Tribunal was advised by the grantee party that it was only prepared to enter into the Regional Standard Heritage Agreement (‘RSHA’) in relation to the proposed licence and requested that the matter proceed to inquiry.

3. The Government party has complied with directions and the grantee party has indicated that it will rely on those documents.  Neither contentions nor evidence have been received from the native title party.

4. At the listing hearing on 8 July 2010, the representative for the native title party, Ms Alissa Lovering, advised that the native title party would accept the RSHS in this instance, but that it required the updated version to be correctly executed by the grantee party. Accordingly Ms Lovering requested a further two weeks to 19 July 2010 in which to finalise agreement, to obviate the requirement to comply with directions for an inquiry. The Government party requested dismissal pursuant to s148(b) of the Act on the basis that the native title party had failed to comply with directions, observing that the following condition would be placed on the grant of the proposed licence:

   ‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Badimia People, the applicants in Federal Court application no WAD 6123 of 1998 (WC96/98, such request being sent by pre-paid post to reach the Licensee’s address, c/- Mr & Mrs K Heitman, PO Box 233, Morawa WA 6623 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Badimia the Regional Standard Heritage Agreement endorsed by peak industry groups and Yamatji Land and Sea Council.’

The grantee party representative was unavailable during the listing hearing but confirmed following the hearing that it would execute the RSHA and that it supported the Government party’s application for dismissal of the objection.  On 9 July 2010 I dismissed the objection application.

1. 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 these matters. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure application.

2. The native title party has chosen not to comply with a direction of the Tribunal on the basis that it will accept an RSHA if executed by the grantee party.  However, despite no RSHA correctly signed by the grantee party being forthcoming in the weeks leading up to 21 June 2010, the native title party submitted neither contentions nor evidence, and made no application in relation to the impending compliance date.  I consider that the request for further time to comply, or more correctly to finalise agreement, which was made at the listing hearing, should more properly have been made on or before the due date.  I further observe that by way of the Government party’s condition on grant, the Badimia People will be provided with the option of requesting that the RSHA be executed by the grantee party should it wish to do so.  The condition should ensure that the native title party’s heritage concerns are ameliorated.

3. I find that the native title party has failed within a reasonable time to proceed with the objection application and to comply with the Tribunal’s directions having submitted no statements of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.

Decision

1. Expedited procedure objection application WO10/230 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
22 July 2010