Albert Little and Others on behalf of Badimia/Western Australia/Ian John McNally

[2010] NNTTA 107

NATIONAL NATIVE TITLE TRIBUNAL

Albert Little and Others on behalf of Badimia/Western Australia/Ian John McNally, [2010] NNTTA 107 (22 July 2010)

Application No:                 WO10/236

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 & Others on behalf of Badimia – WC96/98 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Ian John McNally (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Hon C J Sumner, Deputy President

Place:Perth

Date of dismissal:            12 July 2010

Date of reasons:              22 July 2010

Catchwords:  Native title – future act – proposed grant of prospecting 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 parties:            Ms Alissa Lovering, Yamatji Land and Sea Council

Representatives of the      Mr Clyde Lannan, Department of Mines and Petroleum

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

Representative of the

grantee party:  Mr Ian McNally

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 prospecting licence P58/1487 to Ian John McNally (‘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 and grantee party have complied with directions.  Neither contentions nor evidence have been received from the native title party.

4. At the listing hearing on 8 July 2010, at which the grantee party was not represented, the representative for the native title party advised that the native title party would accept the RSHA in this instance, but that it required the updated version, including a third party heritage provider, to be correctly executed by the grantee party. However, no submissions were made in relation to its failure to comply with directions. 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, 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/- PO Box 48, Pahnyra W A 6957 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 Counci.’

The grantee party has not responded to requests for feedback on the Government party’s dismissal request.

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. 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 statement of contentions or evidence, has provided no reason for its failure to comply, and has made no requests for further time in which to comply, despite having been informed of the possible consequences of a failure to comply.  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.

Decision

1. Expedited procedure objection application WO10/236 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
22 July 2010